MISSISSIPPI RULES OF CIVIL PROCEDURE

1. Scope; purpose.

2. One form of action.

3. Commencing an action.

4. Summons.

5. Serving and filing pleadings and other papers.

6. Time.

7. Allowed pleadings; motion and other papers: form.

8. General pleading rules.

9. Pleading special matters.

10. Pleadings form.

11. Signing pleadings, motions, and other papers.

12. Defenses and objections: when and how; Rule 12 motions; consolidating and waiving defenses; hearing.

13. Counterclaim; crossclaim.

14. Third-party practice.

15. Amended and supplemental pleadings.

16. Pretrial procedure.

16A. Recusal motion.

17. Plaintiff and defendant; capacity.

18. Joinder: claims; remedies. 19. Required joinder of parties.

20. Permissive joinder of parties.

21. Misjoinder and nonjoinder of parties.

22. Interpleader.

23. Class actions. [Omitted].

23.1 Shareholder derivative actions. [Omitted].

23.2 Actions relating to unincorporated associations. [Omitted].

24. Intervention.

25. Substituting parties.

26. General provisions governing discovery.

27. Depositions to perpetuate testimony.

28. Persons before whom depositions may be taken.

29. Stipulations about discovery procedure.

30. Depositions by oral examination.

31. Depositions by written questions.

32. Deposition use in court proceedings.

33. Interrogatories to parties.

34. Producing documents and things; entering land for inspecting and other purposes.

35. Physical and mental examination.

36. Requests for admission.

37. Failure to cooperate in discovery: sanctions.

38. Right to jury trial.

39. Trial by jury or by the court. [Omitted].

40. Assigning case for trial.

41. Dismissing an actions.

42. Consolidation; separate trials.

43. Taking testimony.

44. Proving an official record.

44.1 Determination of foreign law. [Omitted].

45. Subpoena.

46. Exception unnecessary.

47. Jurors.

48. Juries; verdicts.

49. Verdict: general; special.

50. Motions: directed verdict; judgment notwithstanding the verdict.

51. Jury instructions.

52. Findings by the court.

53. Masters, referees, and commissioners.

54. Judgment; costs.

55. Default.

56. Summary judgment.

57. Declaratory judgment.

58. Entering judgment.

59. New trial; amending a judgment.

60. Relief from judgment or order.

61. Harmless error.

62. Staying proceeding to enforce judgment.

63. Judge’s inability to proceed.

64. Seizing a person or property.

65. Injunctions.

65.1 Security: proceeding against surety.

66. Receiver.

67. Deposit in court.

68. Offer of judgment.

69. Execution.

70. Judgment for specific acts; vesting title.

71. Process for and against nonparty.

71A. [Eminent Domain] [Reserved].

72 TO 76. [Omitted].

77. Conducting business; clerk’s authority; notice of order or judgment.

78. Motion practice.

79. Clerk records.

80. Stenographic report or transcript as evidence. [Omitted].

81. Rule applicability.

82. Jurisdiction; venue.

83. Local court rules.

84. Forms 1, 2, 3, and 4.

85. Title; citation.

APPENDIX: FORMS 1, 2, 3, AND 4.

Form 1. Process server (front).

Form 1. Process server (back).

Form 2. Sheriff (front).

Form 2. Sheriff (back).

Form 3. Notice and acknowledgment for service by mail (front).

Form 3. Notice and acknowledgment for service by mail (back).

Form 4. Summons by publication.

APPENDIX B. AFFECTED STATUES [Deleted in its entirety].

APPENDIX C. TIME TABLE FOR PROCEEDINGS UNDER THE MISSISSIPPI RULES OF CIVIL PROCEDURE [Deleted in its entirety].

MISSISSIPPI RULES OF CIVIL PROCEDURE

Adopted Effective 1/1/82

ORDER ADOPTING THE MISSISSIPPI RULES OF CIVIL PROCEDURE SUPREME COURT OF MISSISSIPPI

Pursuant to the inherent authority vested in this Court by the Constitution of the State of Mississippi, as discussed in Cecil Newell, Jr. v. State of Mississippi, 308 So. 2d 71 (Miss. 1975), to promote justice, uniformity, and the efficiency of courts, the rules attached hereto are adopted and promulgated as Rules of Practice and Procedure in all Chancery, Circuit, and County Courts of this State in all civil actions filed on and after January 1, 1982, any and all statutes and court rules previously adopted to the contrary notwithstanding, and in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control.

The Clerk of this Court is authorized and directed to spread this order and the rules attached hereto at large on the minutes of the Court, and the Clerk is further authorized and directed to forward a certified copy thereof to West Publishing Company for publication in a forthcoming edition of Southern Reporter, Mississippi Cases, the official publication of decisions of this Court.

ORDERED, this the 26th day of May, 1981.

Neville Patterson, Chief Justice FOR THE COURT

ORDER REPEALING COMMENTS TO THE MISSISSIPPI RULES OF CIVIL PROCEDURE SUPREME COURT OF MISSISSIPPI

This matter is before the en banc Court on the Motion for the Amendment of Comments to the Mississippi Rules of Civil Procedure filed by the Supreme Court Rules Advisory Committee. As created by order of this Court originally dated November 9, 1983, the Committee is composed of members who represent the bench, bar, and the law schools of this state. In keeping with its responsibilities and for the purpose of assisting the bench and bar, the Committee has promulgated the notes that follow the Court’s rules. These notes, while not official comments of the Supreme Court, are the product of extensive research and review and have been vetted by the members of the Committee as well as other trial judges and practicing members of the bar. The Court expresses its sincere appreciation for the Committee’s commitment, diligence, and hard work. Having carefully considered the motion and its attachments, the en banc Court finds that the motion should be granted to the extent provided in this order.

IT IS, THEREFORE, ORDERED that the current Comments to the Mississippi Rules of Civil Procedure are repealed effective July 1, 2014.

IT IS FURTHER ORDERED that the Advisory Committee Notes to the Mississippi Rules of Civil Procedure as contained in Exhibit “A” are approved for publication with the Mississippi Rules of Civil Procedure effective July 1, 2014.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.

SO ORDERED, this the 9th day of June, 2014.

William L. Waller, Jr., Chief Justice FOR THE COURT

MISSISSIPPI RULES OF CIVIL PROCEDURE

8 (1) Scope of Rules. (2) One Form of Action. (3) Commencement of Action. (4) Summons. (5) Service of Filing of Pleadings and Other Papers. (6) Time. (7) Pleadings Allowed; Form of Motions. (8) General Rules of Pleading. (9) Pleading Special Matters. (10) Form of Pleadings. (11) Signing of Pleadings and Motions. (12) Defenses and Objections-- When and How Presented-- By Pleading or Motion- Motion For Judgment On the Pleadings. (13) Counter-Claim and Cross-Claim. Third-Party Practice. (14) Amended and Supplemental Pleadings. (14) Pre-trial Procedure. 16A. Motions for Recusal of Judges. (14) Parties Plaintiff and Defendant; Capacity. (14) Joinder of Claims and Remedies. (14) Joinder of Persons Needed for Just Adjudication. (14) Permissive Joinder of Parties. (14) Misjoinder and Nonjoinder of Parties. (14) Interpleader. (14) [Class Actions] [Omitted]. 14.0 [Derivative Actions By Shareholders] [Omitted]. 14.0 [Actions Related to Unincorporated Associations] [Omitted]. (14) Intervention. (14) Substitution of Parties. (14) General Provisions Governing Discovery. (14) Depositions Before Actions or Pending Appeal. (14) Persons Before Whom Depositions May Be Taken. (14) Stipulations Regarding Discovery Procedure. (14) Depositions Upon Oral Examination. (14) Depositions Upon Written Questions. (14) Use of Depositions In Court Proceedings. (14) Interrogatories to Parties. (14) Production of Documents and Things and Entry Upon Land For Inspection and Other Purposes. (15) Physical and Mental Examinations of Persons.

9 (16) Requests for Admission. (17) Failure to Make Or Cooperate in Discovery: Sanctions. (18) Jury Trial of Right. (19) [Trial By Jury Or By The Court] [Omitted]. (20) Assignment of Cases for Trial. (21) Dismissal of Actions. (22) Consolidation: Separate Trials. (23) Taking of Testimony. (24) Proof Of Documents. 24.1 [Determination of Foreign Law] [Omitted]. (25) Subpoena. (26) Exceptions Unnecessary. (27) Jurors. Juries and Jury Verdicts. (28) General Verdicts and Special Verdicts. (28) Motions For Directed Verdict and For Judgment Notwithstanding the Verdict. (28) Instructions to Jury. (28) Findings By The Court. (28) Masters, Referees and Commissioners. (28) Judgments; Costs. (28) Default. (28) Summary Judgment. (28) Declaratory Judgments. (28) Entry of Judgment. (28) New Trials; Amendment of Judgments. (28) Relief From Judgment or Order. (28) Harmless Error. (28) Stay of Proceedings To Enforce A Judgment. (28) Disability of A Judge. (28) Seizure of Person or Property. (28) Injunctions. 28.0 Security: Proceedings Against Sureties. (28) Receivers. (28) Deposit in Court. (28) Offer of Judgment. (28) Execution. (29) Judgment For Specific Acts; Vesting Title. (29) Process In Behalf Of and Against Persons Not Parties. 71A. [Eminent Domain] [Reserved]. 72 TO 76. [Omitted].

10 77. Courts and Clerks. 78. Motion Practice. 79. Books and Records Kept By The Clerk and Entries Therein. 80. [Stenographic Report or Transcript As Evidence] [Omitted]. 81. Applicability of Rules. 82. Jurisdiction and Venue. 83. Local Court Rules. 84. Forms. 85. Title. Appendix A. Forms. Form 1A. Summons. Form 1AA. Summons. Form 1B. Notice And Acknowledgment For Service By Mail. Form 1C. Summons By Publication. Form 1D. Rule 81 Summons. Form 1DD. Rule 81 Summons. Form 1E. Waiver of Process. Form 2. Complaint on a Promissory Note. Form 3. Complaint on Covenant or Agreement. Form 4. Complaint For Specific Performance. Form 5. Complaint on Open Account. Form 6. Complaint on Account Stated. Form 7. Complaint for Goods Sold and Delivered. Form 8. Complaint for Work and Labor Done. Form 9. Complaint for Money Lent. Form 10. Complaint for Money Paid by Mistake. Form 11. Complaint for Money Had and Received. Form 12. Complaint for Money Paid by Plaintiff for Defendant. Form 13. Complaint on Policy of Life Insurance. Form 14. Complaint On Policy of Fire Insurance. Form 15. Complaint for Negligence or Wantonness. Form 16. Complaint for Assault and Battery. Form 17. Complaint for False Imprisonment. Form 18. Complaint for Malicious Prosecution. Form 19. Complaint for Fraud. Form 20. Complaint on a Warranty. Form 21. Complaint for Conversion. Form 22. Motion to Dismiss Pursuant to Rule 12(b). Form 23. Answer Presenting Defenses Under Rule 12(b). Form 24. Motion to Bring In Third-Party Defendant.

11 Form 25. Third-Party Complaint. Form 26. Motion To Intervene as a Defendant Under Rule 24. Form 27. Motion to Drop Defendant or for Severance of Claims. Form 28. Motion by Defendant for Severance of Claims of Several Plaintiffs. Form 29. Motion by Plaintiff to Add Defendant. Form 30. Motion by Defendant to Bring in Additional Defendant. Form 31. Motion by Defendant to Add Additional Plaintiff. Form 32. Answer to Complaint Set Forth in Form 11 with Counter-Claim for Interpleader. Form 33. Plaintiff’s Motion for Substitution- Deceased Party Defendant. Form 34. Pre-trial Order. Form 35. Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for New Trial. Form 36. Application to Clerk for Entry of Default and Supporting Affidavit. Form 37. Docket of Entry of Default. Form 38. Default Judgment Entered by Court. Appendix B. Statutes Affected. Appendix C. Time Table for Proceedings. MISSISSIPPI RULES OF CIVIL PROCEDURE Adopted Effective January 1, 1982 ORDER ADOPTING THE MISSISSIPPI RULES OF CIVIL PROCEDURE SUPREME COURT OF MISSISSIPPI Pursuant to the inherent authority vested in this Court by the Constitution of the State of Mississippi, as discussed in Cecil Newell, Jr. v. State of Mississippi, 308 So. 2d 71 (Miss.1975), to promote justice, uniformity, and the efficiency of courts, the rules attached hereto are adopted and promulgated as Rules of Practice and Procedure in all Chancery, Circuit, and County Courts of this State in all civil actions filed on and after January 1, 1982, any and all statutes and court rules previously adopted to the contrary notwithstanding, and in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control. The Clerk of this Court is authorized and directed to spread this order and the rules attached hereto at large on the minutes of the Court, and the Clerk is further authorized and directed to forward a certified copy thereof to West Publishing Company for publication in a forthcoming edition of Southern Reporter, Mississippi Cases, the official publication of decisions of this Court. ORDERED, this the 26th day of May, 1981. Neville Patterson, Chief Justice FOR THE COURT

12 ORDER REPEALING COMMENTS TO THE MISSISSIPPI RULES OF CIVIL PROCEDURE SUPREME COURT OF MISSISSIPPI This matter is before the en banc Court on the Motion for the Amendment of Comments to the Mississippi Rules of Civil Procedure filed by the Supreme Court Rules Advisory Committee. As created by order of this Court originally dated November 9, 1983, the Committee is composed of members who represent the bench, bar, and the law schools of this state. In keeping with its responsibilities and for the purpose of assisting the bench and bar, the Committee has promulgated the notes that follow the Court’s rules. These notes, while not official comments of the Supreme Court, are the product of extensive research and review and have been vetted by the members of the Committee as well as other trial judges and practicing members of the bar. The Court expresses its sincere appreciation for the Committee’s commitment, diligence, and hard work. Having carefully considered the motion and its attachments, the en banc Court finds that the motion should be granted to the extent provided in this order. IT IS, THEREFORE, ORDERED that the current Comments to the Mississippi Rules of Civil Procedure are repealed effective July 1, 2014. IT IS FURTHER ORDERED that the Advisory Committee Notes to the Mississippi Rules of Civil Procedure as contained in Exhibit “A” are approved for publication with the Mississippi Rules of Civil Procedure effective July 1, 2014. IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. SO ORDERED, this the 9th day of June, 2014. William L. Waller, Jr., Chief Justice FOR THE COURT

13 CHAPTER SECTION I1. SCOPE OF RULES; - ONE FORM OF ACTION

Rule 1. Scope of rules; purpose.

(a) Scope. Unless Rule 81 states otherwise, Tthese rules apply to all civil actions and proceedings in Mississippi circuit, chancery, and county courtsgovern procedure in the circuit courts, chancery courts, and county courts in all suits of a civil nature, whether cognizable as cases at law or in equity, subject to certain limitations enumerated in Rule 81.

(b) Purpose. The court and all parties must ; however, even those enumerated proceedings are still subject to these rules where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with these rules. These rules shall be construed these rules to secure the a just, speedy, and inexpensive determination of every action.

Advisory Committee Notes

These rules apply to a civil action as broadly as is judicially feasible regardless if the action is one at law or in equity. But are to be applied as liberally to civil actions as is judicially feasible, whether in actions at law or in equity. However, nothing in the rules should not be interpreted as abridging or modifying the traditional jurisdictional separations of jurisdiction between Mississippi the law courts and equity courts in Mississippi.

One of the most important provisions of these rules, Tthe salient provision of mandate in Rule 1(b) reflects the spirt of is the statement that “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.” There probably is no provision in these rules more important than this mandate; it reflects the spirit in which the rules werethe rules’ conception and writing conceived and written; the same spirit should guide their interpretation. and in which they should be interpreted. The primary purpose of pProcedural rules should is to promote the ends of justice. ; tThese rules seek to do so by establishing a reflect the view thatsingle form of action. The resulting “civil action” unites procedures in law and equity, this goal can best be accomplished by the establishment of a single form of action, known as a “civil action,” thereby uniting the procedures in law and equity through a simplified procedure that

minimizess technicalities, simplifies rules, and placess considerable discretion in the trial judge for construing them rules in a manner consistent with the purpose stated in Rule 1(b). that will secure their objectives.

2 Rule 2. One form of action.

There Oshall be one form of action exists: the to be known as “civil action. ” Advisory Committee Notes

Rule 2 does not affect the various remedies that previously have been available in Mississippi the courts of Mississippi. The abolition of Abolishing the forms of action furnishes a single, uniform procedure and allows by which a a litigant may to present a claim in an orderly manner to in a court empowered to give whatever appropriate and just relief is appropriate and just; the substantive and remedial principles that applied applicable prior to the advent of these rules are not remain unchanged. What was an action at law before these rules is still remains a civil action founded on legal principles principles; and what was a bill in equity before these rules is still remains a civil action founded upon equitable principles.

CHAPTER II. COMMENCEMENT OF ACTION:

SECTION 2. COMMENCING AN ACTION; SERVING CE OF PROCESS; , PLEADINGS, MOTIONS, AND ORDERS

Rule 3. Commencement Commencing ofan action.

(a) Filing a Filing of Ccomplaint; costs. Filing a complaint with the court commences a A civil action is commenced by filing a complaint with the court. When filing a complaint, the plaintiff must make a costs deposit in an amount local rule decides. A required amount becomes effective when a court issues a local rule rule, and the Mississippi Supreme Court approves it.

(b) Motion for security for costs. If the court orders costs, the clerk or a party may file a motion requiring the plaintiff to give security within 60 days.

(1) The motion must include an affidavit stating:

(A) Whether the plaintiff is a state resident; (B) For a nonresident plaintiff, that the movant believes the plaintiff lacks sufficient in-state property to satisfy a cost award; (C) For a resident plaintiff, that the movant believes and has good reason for believing the plaintiff cannot satisfy a cost award; (D) If the movant is a defendant, that the defendant believes in a meritorious defense and that the affidavit is not filed for delay; and (E) If the movant is not a defendant, that the affidavit is not filed at the request of a party defendant.

(2) If the plaintiff fails to give the security, the court should dismiss the suit and issue execution for accrued costs.

(3) For good cause shown, the court may extend the 60 days for giving security.

(c) Proceeding in forma pauperis. A party may proceed in forma pauperis according to Miss. Code Ann. §§ 11-53-17 and 11-53-19. On the clerk’s motion, a party’s motion, or its own, the court may examine facts and circumstances of the affiant’s pauperism.

2 (d) Accounting for costs. Within 60 days of dismissal or final judgment, the clerk must prepare an itemized costs statement and submit it to the parties. The clerk’s statement will include a refund of the costs deposit or a bill for additional costs.

(a) A costs deposit shall be made with the filing of the complaint, such deposit to be in the amount required by the applicable Uniform Rule governing the court in which the complaint is filed. The amount of the required costs deposit shall become effective immediately upon promulgation of the applicable Uniform Court Rule and its approval by the Mississippi Supreme Court. (b) Motion for Security for Costs. The plaintiff may be required on motion of the clerk or any party to the action to give security within sixty days after an order of the court for all costs accrued or to accrue in the action. The person making such motion shall state by affidavit that the plaintiff is a nonresident of the state and has not, as affiant believes, sufficient property in this state out of which costs can be made if adjudged against him; or if the plaintiff be a resident of the state, that he has good reason to believe and does believe, that such plaintiff cannot be made to pay the costs of the action if adjudged against him. When the affidavit is made by a defendant it shall state that affiant has, as he believes, a meritorious defense and that the affidavit is not made for delay; when the affidavit is made by one not a party defendant it shall state that it is not made at the instance of a party defendant. If the security be not given, the suit shall be dismissed and execution issued for the costs that have accrued; however, the court may, for good cause shown, extend the time for giving such security. (c) Proceeding In Forma Pauperis. A party may proceed in forma pauperis in accordance with sections 11-53-17 and 11-53-19 of the Mississippi Code Annotated. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism. Accounting for Costs. Within sixty days of the conclusion of an action, whether by dismissal or by final judgment, the clerk shall prepare an itemized statement of costs incurred in the action and shall submit the statement to the parties or, if represented, to their attorneys. If a refund of costs deposit is due, the clerk shall include payment with the statement; if additional costs are due, a bill for same shall accompany the statement. [Amended effective September 1, 1987; amended effective June 24, 1992; amended effective September 25, 2014.].

Advisory Committee Historical Note

3 Effective June 6/24/, 1992, Rule 3(a) was amended to provide that before they are effective, the amounts of required costs deposits must be promulgated by Uniform Court Rule and approved by the Mississippi Supreme Court. 598-602 So. 2d XXI (West Miss. Cas. 1992).

Effective 9/1/September 1, 1987, Rule 3(e) was amended by providing that the amount required as a deposit for filing suit shall will be the amount required by the Uniform Rule governing the court in whereich the action is filed. 508-511 So. 2d XXV (West Miss. Cas. 1988).

Advisory Committee Notes

Rule 3(a) establishes a precise date for fixing the commencementcommencing of a civil action. Filing a complaint is tThe first step in a civil action is the filing of the complaint with the clerk or judge. Service of process upon the defendant is not essential to commencement of the action. But , but Rule 4(h) does requires the summons and complaint to be servedservice of the summons and complaint within 120 90 days after the filing of the complaint..

Ascertaining tThe precise date of commencement is important in for determining: (1) whether an action has been brought is prematurely; (2) whether it is barred by a statute of limitations bars an action; and (3) ; and whether a court should retain an action if multiple ones which of two or more courts in which actions involving the same parties and issues have been instituted. should retain the case for disposition, absent special considerations. The provisions in Rule 3 seeks to make the assessment, accounting, and funding of costs a uniform procedure. pertaining to costs are intended to make uniform the assessing, accounting for, and funding of costs.

Rule 3(c) allows indigents to sue without depositing security for costs. But the court may examine the affiant’s financial condition and dismiss the action; however, the indigent affiant may be examined as to affiant’s financial condition and the court may, if the allegation of indigency is false, dismiss the action..

4

RULE 4. SUMMONSRule 4. Summons.

(a) (a) Summons: Issuance.

(1) When a complaint is filed, the clerk must issue a summons on the plaintiff’s written request and:

(A) Deliver the summons to the plaintiff for service under Rule 4 (c)(1), 4(c)(3), 4(c)(4), or 4(c)(5); (B) Deliver the summons to the sheriff of the county where the defendant resides or is found for service under Rule 4(c)(2); or (C) Effect service by publication under Rule 4(c)(4).

(2) The person to whom the summons is delivered must promptly serve the summons and a copy of the complaint.

(A) On the plaintiff’s request, a summons or copy of one addressed to multiple defendants must be issued for each defendant to be served.

Upon filing of the complaint, the clerk shall forthwith issue a summons. (b) At the written election of the plaintiff or the plaintiff’s attorney, the clerk shall:Form.

(1) Content. A summons must:

(A) Be dated and signed by the clerk; (B) Bear the court’s seal; (C) Name the court; (D) Name the parties; (E) Be directed to the defendant; (F) State the name and address of the plaintiff’s attorney or an unrepresented plaintiff; (G) State the time in which the defendant must appear and defend; and (H) Notify the defendant a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint.

(2) Multiple parties. Unless service is by publication, if there are multiple plaintiffs or defendants, the summons may contain in place of the names of all parties:

(A) The name of the first party on each side; and

5 (B) The name and address of the party to be served.

(3) Forms 1 and 2.

(A) Process server. A summons served by a process server must substantially conform to Form 1 in the Appendix. (B) Sheriff. A summons served by the sheriff must substantially conform to Form 2 in the Appendix.

(c) Service.

(1) Process server. Unless Rule 4(c)(2) or (c)(4) states otherwise, a nonparty age 18 or older may serve a summons and complaint. If completed by a process server, a sum not exceeding the statutory amount payable to the sheriff for service may be taxed as recoverable costs in the action.

(2) Sheriff. On a party’s written request, the sheriff of the county where the defendant resides or is found must serve a summons and complaint under Rule 4(d). The sheriff must:

(A) Mark the date the summons was received; and (B) Return the summons to the clerk who issued it within 30 days.

(3) Mail.

(A) First-class mail and acknowledgment service; requirements. A summons and complaint may be served under Rule 4(d)(1) or (d)(4) by mailing the person first class, postage prepaid:

(i) A copy of the summons and complaint; (ii) Two copies of a notice and acknowledgment substantially conforming to Form 3 of the Appendix; and (iii) A self-addressed return envelope, postage prepaid.

(1) Service if no acknowledgment received. If the sender does not receive an acknowledgement of service within 20 days, service may be made in a manner this rule (A) Deliver the summons to the plaintiff or plaintiff’s attorney for service undersubparagraphs (c)(1) or (c)(3) or (c)(4) or (c)(5) of this rule.

6 (A) Deliver the summons to the sheriff of the county in which the defendantresides or is found for service under subparagraph (c)(2) of this rule. (A) Make service by publication under subparagraph (c)(4) of this rule. (1) The person to whom the summons is delivered shall be responsible for promptservice of the summons and a copy of the complaint. Upon request of the plaintiff, separate or additional summons shall issue against any defendants. (a) Same: Form. The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. Where there are multiple plaintiffs or multiple defendants, or both, the summons, except where service is made by publication, may contain, in lieu of the names of all parties, the name of the first party on each side and the name and address of the party to be served. Summons served by process server shall substantially conform to Form 1A. Summons served by sheriff shall substantially conform to Form 1AA. (a) Service: (1) By Process Server. A summons and complaint shall, except as provided in subparagraphs (2) and (4) of this subdivision, be served by any person who is not a party and is not less than 18 years of age. When a summons and complaint are served by process server, an amount not exceeding that statutorily allowed to the sheriff for service of process may be taxed as recoverable costs in the action. (1) By Sheriff. A summons and complaint shall, at the written request of a party seeking service or such party’s attorney, be served by the sheriff of the county in which the defendant resides or is found, in any manner prescribed by subdivision (d) of this rule. The sheriff shall mark on all summons the date of the receipt by him, and within thirty days of the date of such receipt of the summons the sheriff shall return the same to the clerk of the court from which it was issued. (1) By Mail. (K) A summons and complaint may be served upon a defendant of any classreferred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and

7 acknowledgment conforming substantially to Form 1-B and a return envelope, postage prepaid, addressed to the sender. (B) If no acknowledgment of service under this subdivision of this rule isreceived by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitallowsted by this rule.

(L) Costs for failing to complete and return acknowledgment. Unless good cause is shown for not completing and returning the notice and acknowledgment of receipt within 20 days, the court must order the person to pay costs for personal service (C) Unless good cause . is shown for not doing so, the court shall order thepayment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing the notice and acknowledgment of receipt of summons. (M) Oath; affirmation. (D) The notice and acknowledgment of receipt of summons and complaint shallbe must be executed under oath or or affirmation.

(4) Publication.

(A) When publication service is authorized; requirements. In a chancery or other proceeding where a statute authorizes process by publication, when the complaint, petition, or account is filed or when the proceeding otherwise commences, the clerk promptly must prepare and publish a summons substantially conforming to Form 4 of the Appendix to the defendant to appear and defend the suit if:

(A) (1) By Publication. (i) If the defendant in any proceeding in a chancery court, or in any proceedingin any other court where process According to a sworn complaint or petition or a filed affidavit, the defendant is not a Mississippi resident; (ii) According to a sworn complaint or petition or a filed affidavit stating the defendant’s post-office address, the defendant cannot be found in Mississippi after diligent inquiry;

8 (iii) According to a sworn complaint or petition or a filed affidavit, the plaintiff or petitioner does not know the defendant’s post-office address after diligent inquiry; or (iv) According to another person’s filed affidavit for the plaintiff or petitioner, the affiant does not know—and believes the plaintiff or petitioner does not know— the defendant’s post-office address after diligent inquiry.

(B) Duration; where. The summons must be published weekly for three successive weeks in a public newspaper in the county where the complaint, petition, account, cause, or other proceeding is pending.

(i) No newspaper. If no county newspaper exists, the notice must be posted at the courthouse door of the county where the complaint, petition, account, cause, or other proceeding is pending. And the notice must be published as stated in Rule 4(c)(4)(B) in a public newspaper in an adjoining county or at the seat of state government. (ii) Filing proof. When completed, proof of publication must be filed in the action or other proceeding. (A) Time to appear and defend. The defendant has 30 days by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C. (iii) The publication of said summons shall be made once in each week duringthree successive weeks in a public newspaper of the county in which the complaint or petition, account, cause or other proceeding is pending if there be such a newspaper, and where there is no newspaper in the county the notice shall be posted at the courthouse door of the county and published as above provided in a public newspaper in an adjoining county or at the seat of government of the

9 state. Upon completion of publication, proof of the prescribed publication shall be filed in the papers in the cause. The defendant shall have thirty (30) days from the date of first publication in which to appear and defend.

(iv) Street address. Where a defendant’s the post- office address of a defendant is given, the a street address must also , if any, shall also bbe stated included unless the Rule 4(c)(4)(A) complaint, petition, or affidavit above mentioned, aversstates it is unknown that after diligent search and inquiry said street address cannot be ascertained..

(B) Clerk’s duty. The clerk has a duty to (C) It shall be the duty of the clerk to hand the summons to the plaintiff or orpetitioner to be published.

(i) At the plaintiff’s or petitioner’s request and expense, the clerk may deliver, or, at his request, and at his expense, to hand it the summons to the proper newspaper’s publisher for publication publisher of the proper newspaper for publication. (ii) Where the absent defendant’s post- office address of the absent defendant is stated, it the clerk has a duty to mail a copy of the summons and complaint first class, postage prepaid, shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant and to record the fact of issuance and mailing t, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket. The clerk’s notation will , and this shall be the evidence the summons was mailed of the summons having been mailed to the defendant.

(D) Unknown heir; unknown party defendant.

(i) Unknown heir. In a chancery proceeding with an unknown heir as a party defendant where the plaintiff files an affidavit stating the heir’s name is unknown, service may be by publication. The proceedings will be as authorized in the case of a nonresident defendant. (ii) Unknown party defendant. When a party in interest is unknown, and the plaintiff files an affidavit stating that fact, the unknown party may become a party defendant through service by publication.

10 (C) Additional Rule 4(d)(2) requirements if serving certain individuals. . (D) When unknown heirs are made parties defendant in any proceeding in thechancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant. When the parties in interest are unknown, and affidavit of that fact be filed, they may be made parties by publication to them as unknown parties in interest. (E) Service on another person under Rule 4(d)(2) must also occur if summons by publication is on:

(i) Where summons by publication is upon aAny unmarried infant; (ii) A , mmentally incompetent person; , or (1) oAnther person individual who incapable of managing his or her own estate by because reason of advanced age, physical incapacity, or mental weakness is incapable of managing his own estate, summons shall also be had upon such other person as shall be required to receive a copy of the summons under paragraph (2) of subdivision (d) of this rule.. (iii)

(5) Certified mail service on out-of-state personService by Certified Mail on Person. Outside State.

(A) Certified mail service. In addition to service by a method according to this rule, a summons may be served on an out-of-state person by sending a copy of the summons and complaint by certified mail, return receipt requested. (B) Requirement if natural person. Where the defendant is a natural person, the envelope containing the summons and complaint must be marked “restricted delivery.” (C) When complete. Service by this method will be complete on the delivery date evidenced by the return receipt or returned envelope marked “refused.”

In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”

11 (d) (d) Summons and Complaint: Person to Bbe Sserved. The summons must be served with a copy of the complaint. Service by sheriff or process server must be made according to Rule 4(d)(1) through (d)(8).

(1) Individual. Other than an unmarried infant or mentally incompetent person, an individual may be served:

(1) Personal service. The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (A) Upon an individual other than an unmarried infant or a mentally incompetentpersonBy delivering a copy of the summons and complaint to the individual personally or to an agent authorized by appointment or law to receive service; or (B) Residence service. If service under Rule 4(d)(1)(A) cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or other family member age 16 or older and willing to receive service.

(i) Mailing requirement. And the plaintiff must mail a copy of the summons and complaint first class, postage prepaid, to the defendant at the place where a copy of the summons and complaint was left. (ii) When complete. Service in this manner is complete on the 10th day after mailing.

(2) Unmarried minor; mentally incompetent.

(A) Unmarried minor. An unmarried minor may be served by delivering a copy of the summons and complaint to:

(i) The mother; (ii) The father; (iii) The legal guardian of the minor or minor’s estate; (iv) The person who cares for the minor; or

(v) The person with whom the minor lives; and (vi) Also to the minor if age 12 or older.

(B) Mentally incompetent (not judicially confined); incapable of managing estate. A mentally incompetent person not judicially confined to an institution for the mentally ill or disabled or a person incapable of

12 managing the person’s own estate because of advanced age, physical incapacity, or mental weakness may be served by delivering a copy of the summons and complaint to the person and to:

(i) The guardian of the person or person’s estate; or (ii) The conservator of the person or person’s estate; and (iii) If the person has no guardian or conservator, the individual with whom the person lives or the individual who cares for the person.

(C) Mentally incompetent (judicially confined). A mentally incompetent person judicially confined to an institution for the mentally ill or disabled may be served by delivering a copy of the summons and complaint to the confined person and if one, to the person’s guardian or guardian of the person’s estate.

(i) When service is not required. If the institution’s superintendent or similar official or person certifies on the summons or an accompanying certificate that the person is mentally incapable of responding to process, service of the summons and complaint will not be required. (ii) Appointing guardian ad litem if guardian or conservator does not exist. If the person does not have a guardian or conservator, the court must appoint a guardian ad litem to whom copies will be delivered.

(D) Person other than minor or mentally incompetent person who is a plaintiff or has adverse interest.

(i) Considered not to exist. If Rule 4(d)(2)(A), (B), or (C) requires service on a person other than the minor, incompetent, or incapable defendant, and if the other person is a plaintiff in the action or has an interest in it adverse to the defendant, then the other person must be considered not to exist for purposes of service.

(ii) Fails to satisfy Rule 4(d)(2)(A), (B), and (C). And serving the other person fails to satisfy Rule 4(d)(2)(A), (B), or (C).

(E) Appointing guardian ad litem if person other minor or mentally incompetent person does not exist.

13 (i) When appointed. If Rule 4(d)(2)(A) or (B) requires service on a person who does not exist other than the minor, incompetent, or incapable defendant, the court may appoint for the defendant a guardian ad litem to whom a copy of the summons and complaint will be delivered and must do so for a minor under age 12. (ii) Additional service. Serving the guardian ad litem with a copy of the summons and complaint does not satisfy a requirement in Rule 4(d)(2)(A), (B), and (C) to also deliver a copy to the minor, incompetent, or incapable defendant.

(3) Confined to penal institution; exception for unmarried minor or mentally incompetent.

(A) Individual confined to penal institution. An individual confined to a Mississippi state or local penal institution may be served by delivering a copy of the summons and complaint to the person. (B) Exception for unmarried minor or mentally incompetent. But if the person is an unmarried minor or mentally incompetent, Rule 4(d)(2) applies.

(4) Corporation, partnership, or other unincorporated association. A domestic or foreign corporation, partnership, or other unincorporated association subject to suit under a common name may be served by delivering a copy of the summons and the complaint to an officer, managing agent, general agent, or other agent authorized by appointment or law to receive process.

(5) State of Mississippi or state department, officer, or institution. The following may be served by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi:

(A) The State of Mississippi; and (B) A department, officer, or institution of the State of Mississippi.

(6) County. A county may be served by delivering a copy of the summons and complaint to the president or clerk of the board of supervisors.

(7) Municipal corporation. A municipal corporation may be served by delivering a copy of the summons and complaint to the mayor or municipal clerk.

14 (8) Other governmental entity. A governmental entity not otherwise mentioned in this rule may be served by delivering a copy of the summons and complaint:

(i) To the person, officer, group, or body responsible for the entity’s administration; (ii) The appropriate legal officer representing the entity; or (iii) A person who is a member of the “group” or “body” responsible for the entity’s administration.

(e) Waiver.

(1) Who may waive process; effect of waiver.

(A) Who may waive process. Other than an unmarried minor or mentally incompetent person, a party defendant may waive service of process, enter an appearance, or both without filing a pleading. (B) Effect of waiver. The effect is the same as if the defendant was served with process in the manner required by law on the same date.

(2) Requirements. The waiver of service or entry of appearance must be:

(A) Written; (B) Dated; (C) Signed by the defendant; and (D) Sworn or acknowledged by the defendant or if not sworn or acknowledged, proven by two subscribing witnesses before an officer authorized to administer oaths.

(3) By guardian, conservator, executor, administrator, or trustee; requirements.

(A) By guardian or conservator. A guardian or conservator may waive process on the guardian, conservator, and ward.

(B) By executor, administrator, or trustee. An executor, administrator, or trustee may waive process on the executor, administrator, or trustee in a fiduciary capacity. (C) Requirements. In addition to Rule 4(e)(2) requirements, the waiver of service or entry of appearance must:

15 (i) Be executed after the day the action was commenced; (ii) Filed; and (iii) Recorded on the general docket.

(f) Return.

(1) Who. The person serving the process promptly must file proof of service with the court. (2) Form. Unless service is by the sheriff, a person must make proof of service by affidavit. (3) Service under Rule 4(c)(3). If service is by mail under Rule 4(c)(3), the sender must make a return by filing the required acknowledgment. (4) Service under Rule 4(c)(5). If service is made on an out-of-state person under Rule 4(c)(5), the sender must make a return by filing the return receipt or the returned envelope marked “refused.” (5) Failing to make proof of service. Failing to make proof of service does not affect the validity of the service.

(g) Amendment. Unless it clearly appears that material prejudice would result to substantial rights of the party against whom process is issued, the court may allow process or proof of service to be amended:

(1) At any time; (2) In its discretion; and (3) On terms it deems just.

(h) Time limit. If a defendant is not served within 90 days after the complaint is filed, and if the party required to serve the defendant cannot show good cause why service was not made within that period, the court—on its own with notice to that party or on a motion—must dismiss the action as to that defendant without prejudice.

, ( ) by delivering a copy of the summons and of the complaint to him personallyor to an agent authorized by appointment or by law to receive service of process; or ( ) if service under subparagraph (1)(A) of this subdivision cannot be made withreasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the

16 complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing. (A) upon an unmarried infant by delivering a copy of the summons and complaint to any any one of the following: the infant’s mother, father, legal guardian (of either the person or the estate), or the person having care of such infant or with whom he lives, and if the infant be 12 years of age or older, by delivering a copy of the summons and complaint to both the infant and the appropriate person as designated above. (A) upon a mentally incompetent person who is not judicially confined to aninstitution for the mentally ill or mentally deficient or upon any other person who by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate by delivering a copy of the summons and complaint to such person and by delivering copies to his guardian (of either the person or the estate) or conservator (of either the person or the estate) but if such person has no guardian or conservator, then by delivering copies to him and copies to a person with whom he lives or to a person who cares for him. (A) upon a mentally incompetent person who is judicially confined in aninstitution for the mentally ill or mentally retarded by delivering a copy of the summons and complaint to the incompetent person and by delivering copies to said incompetent’s guardian (of either the person or the estate) if any he has. If the superintendent of said institution or similar official or person shall certify by certificate endorsed on or attached to the summons that said incompetent is mentally incapable of responding to process, service of summons and complaint on such incompetent shall not be required. Where said confined incompetent has neither guardian nor conservator, the court shall appoint a guardian ad litem for said incompetent to whom copies shall be delivered. (A) where service of a summons is required under (A), (B) and (C) of thissubparagraph to be made upon a person other than the infant, incompetent, or incapable defendant and such person is a plaintiff in the action or has an interest therein adverse to that of said defendant, then such person shall be deemed not to exist for the purpose of service and the requirement of service in (A), (B) and (C) of this subparagraph shall not be met by service upon such person. (A) if none of the persons required to be served in (A) and (B) above exist otherthan the infant, incompetent or incapable defendant, then the court shall appoint a guardian ad litem for an infant defendant under the age of 12 years and may appoint a guardian ad litem for such other defendant to whom a copy of the summons and complaint shall be delivered. Delivery of a copy of the summons and complaint to such guardian ad litem shall not dispense with delivery of copies to the infant, incompetent or incapable defendant where specifically required in (A), and (B) of this subparagraph. (3) Upon an individual confined to a penal institution of this state or of a subdivisionof this state by delivering a copy of the summons and complaint to the individual, except that when the individual to be served is an unmarried infant or mentally incompetent person the provisions of subparagraph (d)(2) of this rule shall be followed.

17 (4) Upon a domestic or foreign corporation or upon a partnership or otherunincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Upon the State of Mississippi or any one of its departments, officers orinstitutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi. (5) Upon a county by delivering a copy of the summons and complaint to thepresident or clerk of the board of supervisors. (5) Upon a municipal corporation by delivering a copy of the summons and complaintto the mayor or municipal clerk of said municipal corporation. (5) Upon any governmental entity not mentioned above, by delivering a copy of thesummons and complaint to the person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the “group” or “body” responsible for the administration of the entity shall be sufficient. (e) Waiver. Any party defendant who is not an unmarried minor or mentally incompetent may, without filing any pleading therein, waive the service of process or enter his or her appearance, either or both, in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof. Such waiver of service or entry of appearance shall be in writing dated and signed by the defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto be proven by two (2) subscribing witnesses before some officer authorized to administer oaths. Any guardian or conservator may likewise waive process on himself and/or his ward, and any executor, administrator, or trustee may likewise waive process on himself in his fiduciary capacity. However, such written waiver of service or entry of appearance must be executed after the day on which the action was commenced and be filed among the papers in the cause and noted on the general docket. (e) Return. The person serving the process shall make proof of service thereof to the court promptly. If service is made by a person other than a sheriff, such person shall make affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such subdivision. If service is made under paragraph (c)(5) of this rule, the return shall be made by the sender’s filing with the court the return receipt or the returned envelope marked “Refused.” Failure to make proof of service does not affect the validity of the service. (e) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process is issued.

18 (e) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion. [Amended effective May 5/1,/ 1982; March 3/1/, 1985; February 2/1/, 1990; July 7/1/, 1998; January 1/3/, 2002.].

Advisory Committee Historical Note

Effective January 1/3/, 2002, Rule 4(e) was amended to delete a prohibition against waiver of service of process by one convicted of a felony. 802-804 So. 2d XVII (West Miss. Cases 2002).

Effective July 7/1/, 1998, Rule 4(f) was amended to state that the person serving process shall must promptly make proof of service thereof to the court.

Effective February 2/1/, 1990, Rule 4(c)(4)(B) was amended by striking the word “calendar” following the word and figure “thirty (30)”; Rule 4(c)(4) was amended by adding subsection (E); Rule 4(c)(5) was amended by changing the title to reflect service by certified mail; Rule 4(d)(2)(A) was amended by substituting the word “person” for “individual” in reference to the one having care of the infant. 553-556 So. 2d XXXIII (West Miss. Cas. 1990).

Effective March 3/1/, 1985, a new Rule 4 was adopted. 459-462 So. 2d XVIII (West Miss. Cas. 1985).

Effective May 5/1/, 1982, Rule 4 was amended. 410-416 So. 2d XXI (West Miss. Cas. 1982).

Advisory Committee Notes

Unless summons is by publication, Aafter a complaint is filed, the clerk is required to must issue a separate summons for each defendant except in the case of summons by publication. The summons must contain the information required by Rule 4(b). Under Rule 4(b), , which requires ththe summons must to notify the defendant that, among other things, a failure to appear will result in a default judgment. by default. Although tThe “judgment by default will be rendered” language may be an overstatement, the strong language is

19 intends ed to encourage a defendants to appear to protect their the defendant’s interests. Forms 1A, 21AA, 3,1B, and 4 1C are provided as suggested forms for the various summonses.

The summons and a copy of the complaint must then be served on each defendant. This rule provides for personal service, residence service, first-class- mail and acknowledgement service, certified- mail service, and publication service.

Rule 4(d)(1)(A) Personal service is authorizes personal service d by Rule 4(d)(1)(A) and requires a copy of the complaint and summons to be delivered delivery of a copy of the complaint and the summons to the person to be served.

Rule 4(d)(1)(B) authorizes rResidence service is authorized by Rule 4(d)(1)(B) and requires that a copy of the complaint and the summons to be left at the defendant’s usual place of abode with the defendant’s spouse or other family member who is above the age of sixteen 16 or older and who is willing to accept service. In addition, Rresidence service further requires that a copy of the summons and complaint to be mailed be thereafter mailed to the defendant at the location where the complaint and summons were left.

Personal service and residence service may be made by a process server or the sheriff in the county where the defendant resides or can be found. A party using a process server may pay sucthe person any agreed amount that is agreed upon. but oOnly that the amount statutorily allowed as payment to the sheriff under Section 25-7-19 of the Mississippi Code of 1972 Annotated section 25-7-19 (Supp. 2013) may be taxed as recoverable costs in the action. Summonses served by process servers should be in substantially conformity with Form 1A. and sSummonses served by sheriffs should be in substantially conformity with Form 1AA2.

Rule 4(c)(3) authorizes Ffirst-class mail and acknowledgement service. is authorized by Rule 4(c)(3). The plaintiff must mail the defendant: (1) a copy of the summons and complaint; (2), two copies of a notice and acknowledgement conforming substantially to Form 1B3; and (3) , and a prepaid-postage paid envelope addressed to the sender. Upon receipt, tThe defendant may execute the acknowledgement of service under oath or by affirmation. If the defendant fails to execute and return the acknowledgement of service in a timely fashion, the defendant may be ordered to pay the costs incurred by the plaintiff in serving the defendant by another method. This provision is intends ed to encourage a defendant to acknowledge service by first-class mail in order to avoid having to pay the costs that would otherwise be incurred by the plaintiff in serving that defendant. Executiong and returning of the acknowledgement of service does not operate as a waiver of objections to jurisdiction or venue. All jurisdictional and venue objections are preserved whether Form

20 1B 3 is completed and returned from inside or outside the state. Although Miss. R. Civ. P. M.R.C.P. 4(c)(3) is modeled after Fed. R. Civ. P. 4(d), defendants who execute and return the acknowledgement of service under Miss. R. Civ. P. M.R.C.P. 4(c)(3) are acknowledging actual service, but , whereas defendants who execute and return the waiver under Fed. R. Civ. P. 4(d) are waiving service.

Rule 4(c)(4) authorizes Ppublication service is authorized by Rule 4(c)(4) and is limited to defendants in chancery court proceedings and other proceedings where a statute authorizes service by publication. is authorized by statute. Service by publication is further limited to defendants who are nonresidents or who cannot be found within the state after diligent inquiry. The requirements for service by publication are detailed in the rule and must be strictly followed; otherwise service is ineffective. See Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988).

Rule 4(c)(5) authorizes service by Ccertified mail service is authorized by Rule 4(c)(5) and is limited to out-of-state persons outside the state. . The plaintiff must send a copy of the summons and complaint to the person to be served by certified mail, return receipt requested. Afterwards, the plaintiff [and must thereafter mail by first-class mail, postage prepaid, a copy of the summons and complaint to the person to be served at the same address. The Pproof of Sservice must indicate the date on which the summons and complaint were mailed by first-class mail and must also include as an attachment the signed return receipt or the return envelope marked “refused.” Service upon a foreign corporation, partnership, or unincorporated association is effective even if the certified mail is delivered to and signed for or refused by a person other than the addressee, if the person accepting delivery and signing or refusing delivery is an officer or employee of the defendant who is and authorized to receive or who regularly receives certified mail or regularly receives it. See Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail upon a foreign corporation effective where the plaintiff addressed the certified mail to the foreign corporation’s registered agent for service of process, and the certified mail was delivered to the proper address, and signed for by the mail clerk rather than the registered agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned marked “unclaimed, /refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood v. Leatherwood, 25 So. 3d 1047 (Miss. 2010).

Rule 4(d) identifies the person to be served with process when the defendant is: (i1) a mentally competent married infant or or a mentally competent adult; (ii2) an unmarried infant; (iii3) a mentally incompetent person who is not judicially confined to an institution for the mentally ill or mentally deficient; (iv4) a mentally incompetent person who is judicially confined to an institution for the mentally ill or mentally deficient; (v5) an individual confined to a state/local penal institution of this state or a subdivision of this

21 state; (vi6) a domestic or or foreign corporation, partnership, or unincorporated association subject to a suit under a common name; (vii7) the State of Mississippi or one of its departments, officers, or institutions; (viii8) a county; (ix9) a municipal corporation; or (x10) any other governmental entity.

Rule 4(e) provides for waiver of service of the summons and complaint. A waiver must be executed after the day on which the action was commenced and thus may be executed without a summons having been issued.

Rule 4(f) provides that the person serving the process shall must promptly file a return of service with the court. For first-class mail and acknowledgement service, proof of service is to must be made by filing a copy of the executed acknowledgement of service. For certified- mail service, proof of service is to must be made by filing the return receipt or the envelope marked “Rrefused.” The purpose of the requirement Requiring for prompt filing of the proof of service is to enables the defendant to verify the date of service by examining the proof of service in the court records.

Under Rule 4(h), if a defendant is not provides that if service is not made upon a defendant served within 120 90 days after the complaint is fileding of the complaint, th, the claims against that defendant will be dismissed without prejudice absent good cause for the failing ure to timely serve the defendant. If service cannot be made within the 12090-day period, it is clearly advisable to move the court within the original time period for an extension of time in which to serve the defendant. If the motion for extension of time is filed within the 12090-day time period, the time period may be extended for ““cause” shown” pursuant under to Rule 6(ab)(51). If a motion for extension of time is filed outside of the original 12090-day time period, the movant must show “good cause” for the failure to timely serve the defendant pursuant to Rule 4(h). See Johnson v. Thomas, 982 So. 2d 405 (Miss. 2008) (former 120-day time period)..

22 Rule 5. Serving and filing pleadings and other papers.

(a) Service: When required Required. Except as otherwise provided in these rules, (1) Service on parties. Unless these rules provide otherwise, all parties must be served with:

(A) Anevery order stating required by its must terms to be served; (B) A , every pleading filed after subsequent to the original complaint unless the court otherwise orders otherwise because ofthere are numerous defendants; (C) A , every paper relating to discovery paper required to be served upon a party unless the court otherwise orders otherwise; (D) A , every written motion other thanexcept one whichthat may be heard ex parte; and (E) A , and every wrwritten notice, appearance, demand, offer of judgment, designation of record on appeal, andor similar paper. shall be served upon each of the parties. (2) Defaulted party. Service is not required on a party in default for failing to appear. But No service need be made on parties in default for failure to appear except that a pleadings asserting new or additional claims for relief against themthe defaulting party shallmust be served upon them in according to the manner provided in Rule 4.

(3) Seizing property. If for service of summons. In an action begun by seizing property begins an action, and seizure of property, in which no person is or needs to need be or is named as a defendant, any service required to be made prior to the filing of an answer, claim, or appearance must shall be made upon the person havingwho had custody or possession of the property at the time of when it was its seizureseized.

(b) Manner.

(1) Attorney of record. Unless the court orders service on a party, service must be made on a party’s attorney.

(A) How. Service must be made on an attorney/party by:

(i) Delivering a copy; (ii) By electronically transmitting it; (iii) By mailing it to the last known address; (iv) If no address is known, by leaving it with the court clerk; or (v) If no address is known, by electronically transmitting it to the court clerk.

(B) Defining delivery. Delivering a copy means: (i) Handing it to the attorney/party; (ii) Leaving it at the attorney’s/party’s office with a clerk or other person in charge; (iii) Leaving it at the attorney’s/party’s office in a conspicuous place if no one is in charge; or (iv) If the office is closed or the attorney/party does not have one, leaving it at the attorney’s or party’s dwelling house or usual place of abode with a person of suitable age and discretion residing at it.

(C) Defining electronically transmitting. Electronically transmitting means sending by fax or email. Electronic transmission by fax must be to the attorney’s fax number listed in the Mississippi Bar’s Lawyer Directory. Electronic transmission by email must be to the attorney’s email address listed in the Mississippi Bar’s Lawyer Directory.

(i) Service by fax is complete when the sender obtains a proof of fax from the recipient’s machine showing the transmission was successfully received. (ii) Service by email is complete when sent. But if the email is electronically returned to the sender shortly after transmission because the email address was incorrect, an attachment exceeded a size limit, or other reason, then service by email is not complete. (iii) If the sender does not obtain a proof of fax showing the transmission was successfully received or if an email is electronically returned shortly after sending, service is not complete until the sending party obtains an acknowledgment from the recipient.

(D) When complete. Service by mail is complete upon mailing.

(2) Electronic court system. Where a court has adopted the Mississippi Electronic Court system, service allowed or required under these rules must conform with the Administrative Procedures for Mississippi Electronic Courts.

2

(c) Numerous defendants.

(1) If there are an unusually large number of defendants, on a motion or its own, the court may order:

(A) That the defendants’ pleadings and replies to them do not need to be served between the defendants; (B) That a crossclaim, counterclaim, or matter constituting an avoidance or affirmative defense in the defendants’ pleadings will be considered to be denied or avoided by all other parties; and (C) That filing the pleading and serving the plaintiff constitutes due notice to all parties.

(2) A copy of the order must be served on parties in a manner and form the court directs.

(d) Filing.

(1) When. Before service or within a reasonable time afterwards, a paper after the complaint that requires service on a party must be filed with the court. (2) Discovery papers. Unless the court orders otherwise, discovery papers do not need to be filed until used in a proceeding. (3) Proof of service. Proof a paper was served must be by a signed certificate of service.

(e) Defining filing with the court; electronically filing.

(1) Filing with court. Under these rules, pleadings and other papers must be filed with the court clerk. But the court may allow papers to be filed with the judge; if so the judge must note the filing date on the papers and transmit them to the clerk. (2) Electronically filing with the court. By local rule conforming with the Administrative Procedures for Mississippi Electronic Courts, a court may allow pleadings and other papers to be filed, signed, or verified by electronic means. Pleadings and other papers filed electronically in compliance with the procedures are written papers for purposes of these rules.

. RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

3 (a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided in Rule 4 for service of summons. In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure. (1) Service: How Made. Whenever under these rules service is required or permitted to to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him; or by transmitting it to him by electronic means; or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court, or by transmitting it to the clerk by electronic means. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by electronic means is complete when the electronic equipment being used by the attorney or party being served acknowledges receipt of the material. If the equipment used by the attorney or party being served does not automatically acknowledge the transmission, service is not complete until the sending party obtains an acknowledgment from the recipient. Service by mail is complete upon mailing. (2) Electronic Court System Service: How Made. Where a court has, by local rule, adopted the Mississippi Electronic Court System, service which is required or permitted under these rules shall be made in conformity with the Mississippi Electronic Court System procedures. (b) Service: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants, and that any cross-claim, counter-claim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service upon the plaintiff

4 constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter but, unless ordered by the court, discovery papers need not be filed until used with respect to any proceeding. Proof of service of any paper shall be upon certificate of the person executing same. (c) (1) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk. (1) Electronic Filing with Court Defined. A court may, by local rule, allow pleadings and other papers to be filed, signed, or verified by electronic means in conformity with the Mississippi Electronic Court System procedures. Pleadings and other papers filed electronically in compliance with the procedures are written papers for purposes of these rules. [Amended effective March 3/1/, 1989; Amended effective January 1/8/, 2009, for the purpose of establishing a pilot program for Mississippi Electronic Court System.]

Advisory Committee Historical Note

Effective March 3/1/, 1989, Rule 5(b) and Rule 5(e) were amended by authorizing the service and filing of pleadings and documents by electronic means. 536-538 So. 2d XXI (West Miss. Cas. 1989).

Advisory Committee Notes

Rule 5 provides promotes (1) expeditious wan expedient method of exchanging written and electronic communications between parties and (2) an efficient system of filing papers with the clerk. Theis rule presupposes that the court has already has personal gained jurisdiction over the parties. A “pleading filed after the original complaintpleading subsequent to the original complaint,” which assertings a claim for relief against a person over whom the court has not at the time acquired jurisdiction at the time , must be served upon such person along with a copy of a summons. in the same manner as the copy of the summons and complaint is required to be served upon the original defendants.

5 An ex parte motion does not need to which may be heard ex parte is not required to be served , but should be filed. See also Miss. R. Civ. P. ; see also Rule 81(b). The list of The enumeration of papers in Rule 5(a)(1) which are required to be served is is not exhaustive. A motions with an ; also included are aaffidavits must also be served in support of or in opposition to a motionunder, Rules 6(d) and , and a motion for substitution of parties, Rule 25. 5 Rule 5(b)(C) addresses transmission by fax or email. The rule presupposes attorneys maintain up-to-date fax numbers and email addresses in the Mississippi Bar’s Lawyer Directory.

Under Rule 5(b)(C)(i), service by fax is complete when the sender receives a proof of fax. The proof of fax must show the transmission was successful, including the date it was sent, the number of pages transmitted, the recipient’s fax number, and other usual confirmatory information. In contrast, under Rule 5(b)(C)(ii), service by email is complete when sent. But if the email is returned shortly afterwards, service is incomplete.

If the sender fails to obtain a proof of fax or the sender’s email is “bounced” back, service is incomplete unless the recipient acknowledges otherwise under Rule 5(b)(C)(iii). These provisions intend to update the rule and align it with modern practice, including service by email. .

An electronic case management system and electronic filing system, known as tThe Mississippi Electronic Court System (MEC) system is an optional electronic case management and electronic filing systemoptional f for the chancery, circuit, and county courts. But ; however, the procedures in the Administrative Procedures for Mississippi Electronic Courts of the MEC must be followed where if a court has adopted and implemented the MEC by local rule. Therefore , tTo the extent the Administrative Procedures for Mississippi Electronic Courts addresses serving and filing pleadings and other papers, the MEC procedures address service and filing of pleadings and other papers, the procedures should be followed to satisfy Rule 5(be) and Rule 5(bd). For purposes of Rule 5(ed), the Administrative Procedures for Mississippi Electronic Courts MEC procedures provides reasonable exceptions to the requirementrequiring of electronic filing. See , Mississippi Supreme Court Website.State of Mississippi Judiciary Administrative Office of Courts, Administrative Procedures for Mississippi Electronic Courts: Electronic Means for Filing, Signing, Verification, and Service of Pleadings and Papers, https://courts.ms.gov/mec/mec.html.

6 Although sService must be made within the times prescribedspecified times. But, filing may is permitted to beoccur made after service within a reasonable time thereafter. Instances Examples where filing occurs before service requiring the pleading to be filed before it is served include a Rule 3 (complaint) and any other pleadings stating a claim for relief which is served necessary to serve with a summons. Pursuant to Under Rule 5(c), (numerous defendants) the filing of a pleading, and coupled with service ong the plaintiff, constitutes is notice to the parties. Rule 65(b)(C)(ii) requires temporary restraining orders to be filed forthwith in the clerk’s office.

To obtain immediate court action, under Rule 5(de)(1), a party may file papers with the judge , if the latter permits, and obtain an such order as the judge deems propeif allowedr. Rule 5(ed)(1) should be read in conjunction with Rules 77(a), (courts always open), 77(b), (trials and hearings; orders in chambers), and 77(c). (clerk’s office and orders by clerk).

Rule 5(b) does has not apply ication to service serving aof summons; Rules 4 and 81(d) that subject is completely covered that subject by Rule 4 and Rule 81(d).

7

Rule 6. Time.

(a) Computing. The following applies ation. whenIn computing any time period in of time prescribed or allowed by these rules, local rules, court orders, and statutes silent on how to do so:

(1) Days or longer. For days or longer time periods:

(A) Exclude the first day; (B) Count all days, including intermediate Saturdays, Sundays, and legal holidays; and (C) Include the last day.

(i) If the last day occurs on a Saturday, Sunday, or legal holiday, continue counting until the next day that is not one. (ii) If the last day occurs on a day the courthouse or clerk’s office is closed, continue counting until the next day it opens.

(2) Hours. For hours:

(A) Begin counting on the event that triggers the time period; and (B) Count all hours, including intermediate Saturdays, Sundays, and legal holidays.

(i) If the last hour occurs on a Saturday, Sunday, or legal holiday, continue to the same time on the next day that is not one.

(3) “Last day.” Unless a statute, local rule, or court order states otherwise:

(A) For electronic filing, the last day ends at midnight in the court’s time zone. (B) For filing by other means, the last day ends when the clerk’s office is scheduled to close.

(4) “Legal holiday.” A legal holiday means the day defined as one by statute or governor.

(b) Extensions.

8 (b) by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, as defined by statute, or any other day when the courthouse or the clerk’s office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the courthouse or the clerk’s office is closed. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. In the event any legal holiday falls on a Sunday, the next following day shall be a legal holiday. Enlargement. When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may (1) When an act may or must be done within a specified time, the court for cause shown may:

(A) Extend it with or without a motion or notice if acting or requested to do so before the original time or an extension expires. (B) Extend it on a motion if the original time expired and if the movant failed to act because of excusable neglect. (c) The court may not at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect; but it may not extend the time for taking any action acting under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.unless one of those rules states otherwise. (C)

(d) Unaffected by Expiration of court tTerm. The continued existence or expiration of a court term does not The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited t by a court’s power the continued existence or expiration of a term of court. The existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in a civil action consistent with these rules. (c)

(d) Time for motion, hearing notice, and affidavit; Motionsexceptions.

9

(1) Time for motion and hearing notice; exceptions.

(A) A . A written motion and notice of hearing must be served at least 14 days before the hearing except when:

(i) The motion may be heard ex parte; (ii) These rules set a different time; or (iii) A court order sets a different time.

(B) For good cause shown, a party may move ex parte for a court order setting a different time.

(2) Time for affidavit; exceptions.

(A) A , other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supporting an ed by affidavit , the affidavit shall must be served with the motion. (B) ; and, except as otherwise provided Unless in Rule 59(c) states otherwise, an opposing affidavits may must be served no later than seven days be served not later than one day before the hearing.

(i) The , unless the court permits may allow them an opposing affidavit to be served at some other time.

(e) Service by mail: additional time. When a party may or must act within a specified time after service by mail, three days are added after the period would otherwise expire. The additional time (e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. This subdivision does not apply to responses responding to service of a summons under Rule 4. (f) [Amended effective March 3/1/, 1989; amended effective June 6/24/, 1992; amended effective July 7/1/, 2008.]

10 Advisory Committee Historical Note

Effective June 6/24/, 1992, Rule 6(a) was amended to provide that the legal holidays which cause a period of time to be enlarged are those defined by statute. 598-602 So. 2d XXII-XXIII (West Miss. Cas. 1992).

Effective March 3/1/, 1989, Rule 6(a) was amended to abrogate the inclusion of time periods established by local court rules. 536-538 So. 2d XXI (West Miss. Cas. 1989).

Advisory Committee Notes

It is not uncommon for Cclerks’ offices and courthouses occasionally to be closed occasionally during what are normal working periods. , whether by local custom or for a special purpose, such as attendance at a funeral. Rule 6(a) was drafted to obviates otherwise any harsh results that may otherwise ensue when an attorney , faced with an important filing deadline unexpectedly , discovers that the courthouse or the clerk’s office is closed. unexpectedly closed.

Rule 6(b) gives the court wide discretion to enlarge the various time periods both before and after the allotted time terminates. But actual termination of the allotted time, certain enumerated cases being excepted. aA court cannot extend the time for: (1) filing for filing of a motion for judgment notwithstanding the verdict pursuant to under Rule 50(b); (2ii) filing for filing a motion to amend the court’s findings pursuant under to Rule 52(b); (3iii) filing for filing a motion for new trial pursuant under to Rule 59(b); (4iv) filing for filing a motion to alter or amend the judgment pursuant under to Rule 60(b); (5vi) filing for filing a motion to reconsider a court order transferring a case to another court one pursuant under to Rule 60(c); or (6vii) for entering a sua sponte order requiring a new trial pursuant under to Rule 59(d).

Extending the time period requires a party to show cause for doing so. Importantly, such enlargement is to be made only for cause shown. If the a application motion for additional time is made filed before the period expires, the request may be made ex parte; if it is made filed after the expiration of the period expires, notice of the motion must be given to other parties, and the only cause for which extra time can be allowed is “excusable neglect.”

Rule 6(c) does not abolish court terms; it merely provides greater flexibility to the courts in attending performing a the myriad of functions they must perform, many of which were heretofore previously possible occurred only during term time. The rule is also consistent with the other provisions elsewhere herein that prescribespecifying a specific number of days for taking certain actions rather than linking time expirations to the opening day, or

11 final day, or any other day of a court term . E.g., of court; e.g., Rule 6(d) (motions and notices of hearings thereon to be served not less than five 14 days before time fixed for hearing); , and Rule 12(a) (defendant to answer within thirty 30 days after service of summons and complaint).

12 ).

13

CHAPTERSECTION III3. PLEADINGS; AND MOTIONS; OTHER PAPERS

Rrule 7. Allowed pleadings; allowed; formmotion and other papers: oform.f motions

(a) Allowed Ppleadings.

(1) Only these pleadings are allowed: (A) There shall be aA complaint; (B) and aAn answer to a complaint; (C) aA reply to a counter-claim denominated specifically designated as a counterclaim; (D) as such; aAn answer to a cross-claim; (E) , if the answer contains a cross-claim; aA third-party complaint; (F) , if a person who is not an original party is summoned under the provisions of Rule 14; and aAn answer to a third-party complaint; and (G) If ordered by the court, a reply to an answer or third-party answer. answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. (a) No other pleading will be allowed. (2)

(b) Motion. A request for a court order must be by a filed motion.

(1) Form. Unless filed during a hearing or trial, a motion must:

(A) Be filed in writing; (B) State with particularity the grounds for seeking an order; and (C) State the requested relief.

(2) Rules governing captions, signing, and other matters of form in pleadings apply to motions and other papers.

(c) Paper size. Pleadings, motions, and other papers, including depositions, must be on 8 1/2" by 11" paper. Deposition formatting must comply with the Guidelines for Court Reporters according to Mississippi Rule of Appellate Procedure 11(c).

14 (d) Demurrer, plea abolished. A demurrer, plea, and exception for insufficiency of a pleading will not be used.

(b) Motions and Other Papers. An application to the court for an order shall be by motion which, unless madeduring madeduring a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (1) The rules applicable to captions, signing, or other matters of form of pleadingsapply to all motions and other papers provided for by these rules. (b) Size of Paper. All pleadings, motions and other papers, including depositions, shall be made on 8 1/2" by 11" paper. The format for all depositions shall comply with the Guidelines for Court Reporters as provided in Mississippi Supreme Court Rule 11. (b) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used. Advisory Committee Historical Note

Effective November 11/19/, 1992, Rule 7(c) was redesignated Rule 7(d), and a new Rule 7(c) , requiring letter- size paper for all pleadings, motions , and other papers was adopted. 606-607 So. 2d XIX-XX (West Miss. Cas. 1993).

15 RULE 8. GENERAL RULES OF PLEADINGRule 8. General pleading rules.

(a) (a) Claims for Rrelief. A pleading which stating sets forth a claim for relief , whether an original claim, counter-claim, cross-claim, or third-party claim, shall must contain:

(1) aA short and plain statement of the claim showing that the pleader is entitled to relief, and, ; and

(2) (2) aA demand for judgment for the requested relief.

(A) Relief in the alternative or different types of relief may be demanded.

(2) to which he deems himself entitled. Reliefin the alternative or of several different types may be demanded. (b) Defenses; admissions; denials: Form. of Denials. (1) Requirements. In responding to a pleading, Aa party shall must:

(A) sState in short and plain terms his defenses to each asserted claim; and (B) asserted and shall aAdmit or deny the averments allegations asserted against the party.

(2) Denials: responding to substance. A denial must fairly respond to the substance of an allegation.

(3) Denials: general; specific. Subject to Rule 11 obligations, a party may in good faith deny jurisdictional grounds and all other allegations by general denial.

(A) Otherwise, a party must either:

(i) Specifically deny designated allegations; or (ii) Generally deny all allegations except those specifically admitted.

(4) Partial denials. A party intending in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

2 (5) Lacking sufficient knowledge or information. upon which the adverse party relies. If he A party lacking is without knowledge or information sufficient to form a belief as to about the truth of an allegation averment, he shall so must state so. The statement and this has the effect of a denial.

(c) Affirmative defenses.

(1) Requirements. In responding to a pleading, a party must affirmatively state an avoidance or affirmative defense, including: (A) Accord and satisfaction; (B) Arbitration and award; (C) Assumption of risk; (D) Contributory negligence; (E) Discharge in bankruptcy; (F) Duress; (G) Estoppel; (H) Failure of consideration (I) Fraud; (J) Illegality (K) Injury by fellow servant; (L) Laches; (M) License; (N) Payment; (O) Release; (P) Res judicata; (Q) Statute of frauds; (R) Statute of limitations; and (S) Waiver.

(2) Mistake. If justice so requires, when a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court must treat the pleading as properly designated and may impose terms for doing so.

(d) Failure to deny. When a responsive pleading is required, an allegation other than one relating to the amount of damages is admitted if not denied. If no responsive pleading is required, the allegation is denied or avoided.

(e) Pleading requirements.

3 (1) Generally. Each allegation must be simple, concise, and direct. No technical form of a pleading or motion is required.

(2) Consistency; number.

(A) A party may state two or more claims or defenses alternatively or hypothetically in a single count or defense or separately. If one of the statements is sufficient, so is the pleading. (B) There is no limit on the number of separate claims or defenses a party may state. Separate claims or defenses do not have to be consistent. But obligations stated in Rule 11 apply to all statements.

(f) Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials or designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all of its averments, he may do so by general denial subject to the obligations set forth in Rule 11. (g) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counter-claim or a counter-claim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been proper designation. (h) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (i) Pleading to Be Concise and Direct: Consistency. (10) Each averment of a pleading shall be simple, concise, and direct. No technicalforms of pleading or motions are required. (11) A party may set forth two or more statements of a claim or defense hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made

4 independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency. All statements shall be made subject to the obligations set forth in Rule 11. (l) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. (f) Construction. A pleading must be construed so as to do substantial justice.

(g) Pleadings Shall Not Be read or submitted. Read or Submitted. Except as admitted into evidence, Ppleadings must shall not be considered carried by the jury. (m) into the jury room when they retire to consider their verdict, except insofar as a pleading or portion thereof has been admitted in evidence. (h) Disclosure Disclosing of Minfancyinority or lLegal dDisability. A Every pleading or motion made by or on behalf of a person under legal disability shall set forth such fact must state so unless disclosed in a previous pleading or motion in the action. unless the fact of legal disability has been disclosed in a prior pleading or motion in the same action or proceeding. Advisory Committee Notes

Rule 8 allows claims and defenses to be stated in general terms so that the client’s rights of the client are not lost due to counsel’s by poor drafting skills. of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). All cases must satisfy Rule 8(a) notice- pleading standards. The purpose of Rule 8 is to put parties on notice of the claims against them. E.g., BB Buggies, Inc. v. Leon, 150 So. 3d 90, 101 (Miss. 1994).

Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). No “magic words” are required, and the pleadings must only provide sufficient notice of the claims and basis for relief. BB Buggies, Inc., 150 So. 3d at 101 (quoting Estate of Stevens v. Wetzel, 762 So. 2d 293, 295 (Miss. 2000)).

But Rule 8 “does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim.” PACCAR Fin. Corp. v. Howard, 615 So. 2d 583, 589 (Miss. 1993). A plaintiff must set forth state direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427,

5 432 (Miss. 2005). Conclusory allegations or legal conclusions masquerading as factual conclusions are insufficient. See Cook v. Wallot, 172 So. 3d 788, 801 (Miss. Ct. App. 2013) (quoting Penn Nat’l Gaming, Inc., 954 So. 2d at 431).

To modify child custody, a Mmotions or pleadings must allege adverse effects due to a material change. The seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. motion or pleading is insufficient if it alleges that It is not sufficient to allege that an adverse change will occur unless the if the modification is granted. is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must identify: (1) contain the allegations identifying the name of by name the defendant or defendants against whom each plaintiff asserts a claim; (2), the alleged harm caused by specific defendants as to each plaintiff; (3) , and the location at which at which the harm was caused; and (4) the time period during which when the harm was the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such these cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495.

Under Rule 8(c), requiring a defendant ’s requirement that defendants to plead affirmative defenses when answering is intended to give fair notice of such defenses to the plaintiff for responding to them. s so that they may respond to such defenses. Just as Rule 8(a) requires only that the plaintiff give the defendant notice of a the claims, Rule 8(c) requires only that the defendant give the plaintiff notice of the a defense. “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So. 3d 941, 945 (Miss. 2011) (citing MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 180 (Miss. 2006)).

The list of affirmative defenses in Rule 8(c) is not intended to be exhaustive. A defense is an affirmative defense if the defendant bears the burden of proof. See Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So. 2d 358, 361 (Miss. 2007). “A matter is an ‘avoidance or affirmative defense’ only if it assumes the plaintiff proves everything he alleges[alleged] and asserts, even so, the defendant wins. Conversely, if, in order to succeed in the litigation, the defendant depends upon the plaintiff failing to prove all or part of his claim, the matter is not an avoidance or an affirmative defense. A defendant does not plead affirmatively

6 when he merely denies[merely denying] what the plaintiff has alleged.” Hertz Commercial Leasing Div. v. Morrison, 567 So. 2d 832, 835 (Miss. 1990).

The list of affirmative defenses in Rule 8(c) is not intended to be exhaustive. Examples of some affirmative defenses or matters of avoidance that are not enumerated in Rule 8(c) but which have been recognized by the Supreme Court include: See, e.g., Loggers, LLC. v. 1 Up Techs., LLC, 50 So. 3d 992, 993 (Miss. 2011) (the failure of a foreign limited liability corporationLLC transacting business in the state to register to do business as a prerequisite to maintaining an action in state court as required by under Mississippi Code Annotated section Miss. Code Ann. § 79-29-1007(1)); Price v. Clark, 21 So. 3d 509, 524 (Miss. 2009) (immunity under Mississippi State Tort Claims Act); Meadows v. Blake, 36 So. 3d 1225, 1232-33 (Miss. 2010) (no certificate of expert consultation in medical malpractice cases under Miss. Code Ann. § 11-1-58); Stuart v. Univ. of Miss. Med. Ctr., 21 So. 3d 544, 549-50 (Miss. 2009) (noncompliance with 90-day notice requirement under Miss. Code Ann. § 11-46-11(1)); Ms. Credit Ctr., Inc. v Horton, 926 So. 2d 167, 179 (Miss. 2006) (right to arbitrate); Eckmann v. Moore, 876 So. 2d 975, 989 (Miss. 2004) (apportionment of fault under Miss. Code Ann. § 85-5-7 (Supp. 2011) (see Loggers, L.L.C. v. 1 Up Technologies, L.L.C., 50 So. 3d 992, 993 (Miss. 2011)); ); Hertz Comm’l Leasing Div. v. Morrison, 567 So. 2d 832, 834 (Miss. 1990) (contractual acceleration clause as unenforceable penalty); Bailey v. Georgia Cotton Goods Co., 543 So. 2d 180, 182-83 (Miss. 1989) (immunity under the Mississippi State Tort Claims Act (see Price v. Clark, 21 So. 3d 509, 524 (Miss. 2009)); failure to comply with the requirement of a certificate of expert consultation in medical malpractice cases as required by Mississippi Code Annotated section 11-1-58 (Supp. 2011) (see Meadows v. Blake, 36 So. 3d 1225, 1232-33 (Miss. 2010)); plaintiff’s non-compliance with the 90-day notice requirement contained in Mississippi Code Annotated section 11-46-11(1) (Supp. 2011) (see Stuart v. University of Miss. Med. Ctr., 21 So. 3d 544, 549-50 (Miss. 2009)); the assertion of the right to arbitrate (see Ms. Credit Ctr., Inc. v Horton, 926 So. 2d 167, 179 (Miss. 2006)); apportionment of fault pursuant to Mississippi Code Annotated section 85-5-7 (Supp. 2011) (see Eckmann v. Moore, 876 So. 2d 975, 989 (Miss. 2004)); argument that a contractual acceleration clause is an un-enforceable penalty (see Hertz Comm’l Leasing Div. v. Morrison, 567 So. 2d 832, 834 (Miss. 1990)); the failure of a foreign corporation transacting business in this state to obtain a certificate of authority as prerequisite to maintaining an action under Miss. Code Ann. § in this state as required by Mississippi Code Annotated section 79-415.02); O’Briant v. Hull, 208 So. 2d 784, 785 (Miss. 1968) (election of remedies); Charlot v. Henry, 45 So. 3d 1237, 1243-44 (Miss. Ct. App. 2010) ( (Supp. 2011) (see Bailey v. Georgia Cotton Goods Co., 543 So. 2d 180, 182-83 (Miss. 1989)); election of remedies (see O’Briant v. Hull, 208 So. 2d 784, 785 (Miss. 1968)); adverse possession as a defense to neighboring landowner’s actions); Ashburn v. Ashburn, 970 So.

7 2d 204, 212-13 (Miss. Ct. App. 2007) ( (see Charlot v. Henry, 45 So. 3d 1237, 1243-44 (Miss. Ct. App. 2010)); the defense of condonation in a divorce case).

The court may deny (see Ashburn v. Ashburn, 970 So. 2d 204, 212-13 (Miss. Ct. App. 2007)). Aa party may be denied leave to amend its an answer to include an affirmative defense if that affirmative defense has been waived. See Hutzel v. City of Jackson, 33 So. 3d 1116, 1122 (Miss. 2010).

8 Rule 9. Pleading special matters.

(a) Capacity. The capacity in which one sues or is sued must be stated in one’s the party’s initial pleading.

(b) Fraud; , mMistake; , Ccondition of the Mmind. In all avermentsalleging of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person’s mind may be averred alleged generally.

(c) Conditions Pprecedent. In pleading a the performance or occurrence of conditions precedent, it is sufficient to aver allege generally that all conditions precedent have occurred or been performed or have occurred. A party must deny the performance or occurrence of a condition precedent A denial of performance or occurrence shall be made specifically and with particularity.

(d) Official dDocument or or Aact; : Oordinance; or sSpecial sStatute.

(1) In pleading an official document or official act, alleging it is sufficient to aver that the document was legally issued or ththe act was legally done in is sufficient. (d)(2) An allegation identifying an ordinance or statute by title, approval date, or otherwise is sufficient to compliance with the law. In pleading a municipal or county n ordinance; of a municipality or a county, or a special, local, or private statute; or any right derived from them. therefrom, it is sufficient to identify specifically the ordinance or statute by its title or by the date of its approval, or otherwise.

(e) Judgment. Alleging a judgment or decision without showing jurisdiction to render it is sufficient to In pleading a the judgment or decision of a domestic or foreign court, judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or , or of a board or officer. , it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

(f) Time and place. and Place. For the purpose of testing the sufficiency of a pleading, averments Alleging of time and place is are material for purposes of testing a pleading’s sufficiency.and shall be considered like all other averments of material matter.

(g) Special dDamage. An When iitems of special damage are claimed, they shall be must be specifically stated.

9

(h) Fictitious Pparties. If When a party states in a pleading that an opponent’s is ignorant of the name is unknown, of an opposing party and so alleges in his pleading, the opposing party may be designated by any name. , and when his true name is discovered the proProcess, and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party once it is known.. (h)

(i) Unknown Pparties in iInterest. An In an action where uunknown proper parties party are interested in the subject matter of an action of the action, they may be designated as an unknown parties party in interest.

Advisory Committee Notes

A party To desiring to raise an issue as to a party’s the legal existence, capacity, or authority, the other party must of a party must assert it such in the answer. If lack of capacity appears affirmatively on the face of the complaint, the defense may be raised by a motion pursuant under to Rule 12(b)(6) or Rule 12(c).

“Circumstances” in Rule 9(b) refers to matters such as the like: (1) the time, place, and contents of the false representations; (2) , in addition to the identity of the person who made them; and (3) and what the person obtained as a result.

Under Rule 9(g), requires a detailed pleading of special damages are alleged in detail. But general damages are alleged generally. and only a general pleading of general damages. General damages are damages that are typically caused by , and flow naturally from, the alleged injuries. alleged. Special damages are damages that are unusual or atypical for the type of claim asserted. Special damages are required to be must be plead with specificity so as to give the defendant notice of the nature of the alleged damages. Examples of Sspecial damages include, but are not limited to, consequential damages, damages for lost business profit, and punitive damages. See Puckett Machinery Mach. Co. v. Edwards, 641 So. 2d 29, 37-38 (Miss. 1994) (consequential damages must be plead with specificity); Lynn v. Soterra, Inc., 802 So. 2d 162, 169 (Miss. Ct. App. 2001) (damages for lost business profits caused by defendant’s blocking of a road are likely special damages). If claimant fFailing s to plead special damages with specificity could result in the reversal of a damages , an award. for such damages may be reversed. The requirement that special damages must be stated with specificity will be waived if special damages are tried by the express or implied consent of the parties pursuant to under Rule 15(b).

10

Rule 10. Pleadings Fform of pleadings.

(a) Caption; party Nnames. of Parties. Every pA pleading shall must contain a caption setting forth stating the court name, of the court, the title of the action title, the file number, and a designation as in Rule 7(a) designation.

(1) In the complaint, the action title of the action shall must include the names of all the parties. (a)(2) In , but in other pleadings, it is sufficient to state the name of the first party on each side with an appropriate indication of all others. parties.

(b) Paragraphs; sSeparate sStatement.

(1) The first paragraph of a claim for relief shall must contain the names of all parties and their and, if known, the addresses if known. of all the parties. (2) All allegations averments of of a claim or defense shall must be made asserted in numbered paragraphs.

(A) , tThe contents of each numbered paragraph must of which shall be limited as far as practicable to a statement of a single set of circumstances. (B) ; and tThe paragraph may be referred to by number in all succeeding subsequent pleadings.

(b)(3) Each claim founded upon a separate transaction or occurrence and each defense other than a denials shall must be stated in a separate count or defense whenever when a separation doing so facilitates presenting the matters clearly.the clear presentation of the matters set forth.

(c) Adoption by rReference; Eexhibits. A Sstatements in a pleading may be adopted by reference in a different part of in the same pleading, or in another pleading, or in any motion. A copy of any a written instrument attached which is as an exhibit to a pleading is a part of the pleading thereof for all purposes.

(d) Copy Mmust Bbe Aattached. When any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with to the pleading or filed with it unless the pleading alleges sufficient justification for its omission. is stated in the pleading.

[Amended effective April 4/13/, 2000.]

11

Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 10(d) was amended to suggest , rather than require that documents on which a claim or defense is based to be attached to a pleading. 753- 745 So. 2d XVII (West Miss. Cas. 2000.)

Advisory Committee Notes

Failure to comply with the requirements of Rule 10(b) requirements is not ground a basis for dismissal of dismissing the complaint or striking the answer. But on a motion or its own, Instead, the the court, upon a motion or on its own, may order a party to amend the pleading so as to comply with the provisions of Rule 10(b). See, e.g., 3M Co. v. Glass, 917 So. 2d 90, 92-94 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 494-95 (Miss. 2004).

12 Rule 11. Signing of pleadings, and motions, and other papers.

(a) Signature Rrequired.

(1) A Every pleading, or motion, or other paper must be signed by of a party represented by an attorney shall be signed by at least one attorney of record in that the attorney’s individual name. , whose address shall be stated. An unrepresented party who is not represented by an attorney shall must personally sign that party’s name. The pleading, motion, or other paper must state the signer’s address, email address, and telephone number.

(2) that party’s pleading or motion and state the party’s address. Unless a rule or statute specifically states Except when otherwise, specifically provided by rule or statute,a pleadings does not need notto be verified or accompanied by an affidavit. The rule in equity that sworn the allegations in averments of an answer under oath must be overcome by the testimony of from two witnesses or of one witness sustained by and corroborating circumstances is abolished.

(3) The signature of an attorney constitutes a certificate:

(A) tThat the attorney h has read the pleading, motion, or other paper; or motion; (B) tThat to the best of the attorney’s knowledge, information, and belief there is good grounds to support it; and (C) tThat it is not interposed for delay.

(a)(4) Except on a verified motion for admission pro hac vice, Tthe signature of an attorney who is not regularly admitted to practice in Mississippi, except on a verified application for admission pro hac vice, shall furtheralso constitute certifies a certificate by the attorney that the foreign attorney has been admitted in the case in accordiangce witho the requirements and limitations of Miss. R. App. P. Rule 46(b) of the Mississippi Rules of Appellate Procedure. requirements and limitations.

(b) Sanctions. If aAn unsigned pleading, or motion, or other paper or one is not signed or is signed with intent to defeat the purpose of this rule , it may be stricken as false and a sham sham. and false, and tThe action may proceed as though the pleading, or motion, or other paper had not been served.

13 (1) For willful violation of this rule, an attorney may be subjected to appropriate disciplinary action. (2) Similar action may be taken if scandalous or indecent matter is inserted. (b)(3) If the court decides that a party’s If any party files a pleading, motion, or other paper pleading which, in the opinion of the court, is frivolous or intended to harass or is filed for the purpose of harassment or delay, the court may order such a the party, the party’s or his attorney, or both, to pay to the opposing party or or parties the reasonable expenses, including reasonable attorney’s fees, incurred by such other parties them and by their attorneys, including reasonable attorneys’ fees. .

[Amended effective March 3/13/, 1991; amended effective January 1/16/, 2003]. Advisory Committee Historical Note

Effective January 1/16/, 2003, Rule 11(a) was amended to provide that the signature of a foreign attorney certifies compliance with MRAP Miss. R. App. P. 46(b) and to make other editorial changes. ____ So. 2d ____ (West Miss. Cases 2003).

Effective March 3/13/, 1991, Rule 11(b) was amended to provide for sanctions against a party, his attorney, or both. 574-576 So. 2d XXI (West Miss. Cas. 1991).

Advisory Committee Notes

Good faith and professional responsibility are the bases core of Rule 11. For example, Rule 8(b), for instance, authorizes the use of a general denial subject to Rule 11— “subject to the obligations set forth in Rule 11,” meaning in other words, counsel should do so only when counsel can in good faith he or she can fairly deny all the averments allegations in the adverse pleading. should he do so.

Verification will be the exception and not the rule to pleading in Mississippi. No pleading or petition requires need be verification verified or an accompanying accompanied by aaffidavit unless there is a specific provision to that effect in a rule or statutestatutory provision states otherwise. See, e.g., M.R.C.P. Miss. R. Civ. P. 27(a) and 65.

The final sentence of Rule 11(b) is intends ed to ensure that the trial court has sufficient power to deal forcefully and effectively with parties or attorneys who may misuse the liberal, notice- pleadings system effectuated by these rules. The Rule It authorizes a court to award a party reasonable attorney’s’ fees and expenses when an adverse party files a

14 frivolous pleading, motion, or other paper or one intended to harass or delay. “files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay.” ThusTherefore, Rule 11 provides two alternative grounds for the impositiong of sanctions: (1) —the filing of a frivolous pleading, motion, or pleadingother paper and (2) , and the filing of a pleading, motion, or other paper to pleading for the purpose of hharass ment or delay. See Nationwide Mut. Ins. Co. v. Evans, 553 So. 2d 1117, 1120 (Miss. 1989).

Although a finding of bBad faith is necessary ftor sustain the imposition of sanctions based on purposeful harassment or delay,. a finding of bad faith But is not necessary for to sustain the imposition of sanctions based upon frivolous pleadings, or motions, or other papers. A pleading, or motion, or other paper is frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” See In re Spencer, 985 So. 2d 330, 339 (Miss. 2008). A pleading, motion, or other paper is “frivolous” if its “insufficiency…. . . is so manifest upon a bare inspection of the pleadings, that the court or judge is able to determine its character without argument or research.” In re Estate of Smith, 69 So. 3d 1, 6 (Miss. 2011). A defensive pleading is not frivolous unless “conceding it to be true does not, taken as a whole, contain any defense to any part of complainant’s cause of action and its insufficiency as a defense is so glaring that the Court can determine it upon a bare inspection without argument.” Id. In re Estate of Smith, 69 So. 3d at 6. Sanctions against a party are improper in cases: (1) where the party relied strictly on counsel’s advice of counsel and could not be expected to know whether the complaint was supported by law; (2) , where the party relied on counsel’s advice of counsel in filing the pleading and played no significant role in prosecutiong of the action; or (3) where the party was unaware and lacked responsibility for any bad- faith harassment or delay. See Stevens v. Lake, 615 So. 2d 1177, 1184 (Miss. 1993).

The Litigation Accountability Act also authorizes a court to impose sanctions upon attorneys and/or and parties who assert “any claim or defense that is without substantial justification or , or …was interposed ftor delay or harassment.” Miss. Code Ann. § 11-55- 5 (Supp. 2011). “Without substantial justification” is defined as any claim that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Id. Miss. Code Ann. § 11-55-3(a). (Supp. 2011). “Frivolous” as used in the Act means the same thing as “frivolous” as used in Rule 11: a claim or defense made ‘“without hope of success.’” See In re Spencer, 985 So. 2d at 330, 338 (Miss. 2008).

15 Rule 12. Defenses and objections: when and how; Rule 12 motions; consolidating and waiving defenses; hearing. Defenses and objections -- when and how presented -- by pleading or motion -- motion for judgment on the pleadings

(a) (a) When Presented.When presented.

(1) Serving a responsive pleading.

(A) Answer to complaint. A defendant shall must serve his an answer within thirty 30 days after being the serviceserved of with the summons and complaint or as Rule 4 states otherwise regarding waiver. upon him or within such time as is directed pursuant to Rule 4. (B) Answer to crossclaim. A party must served an answer to with a pleading stating a cross-claim against him shall serve an answer thereto within thirty 30 days after the service upon himbeing served with a pleading stating one.. (C) Reply to counterclaim. A The plaintiff shall must serve his a reply to a counter-claim in the answer within thirty 30 days after being served ice of with an the answer orstating one or an order requiring a reply unless the court orders otherwise.

(2) Effect of motion.

(A) Unless the court orders a different time, , if a reply is ordered by the court, within thirty days after service of the order, unless the order otherwise directs. The sserviceng of a motion permitted under this rule alters these periods in Rule 12(a)(1) of time as follows, unless a different time:

(i) If the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court’s action. (ii) If the court grants a motion for a more definite statement, the responsive pleading must be served within 10 days after service of the more definite statement. (B) The court may extend these times only once for a period not to exceed 10 days on counsel’s written, filed stipulation.

is fixed by order of the court: if the court denies the motion or postpones its disposition until the trial on themerits, the the responsive pleading shall be served within ten days after notice of the court’s action;

16 if the court grants a motion for a more definite statement, the responsive pleadingshall be served within ten days after the service of the more definite statement. The times stated under this subparagraph may be extended, once only, for a period not to exceed ten days, upon the written stipulation of counsel filed in the records of the action. (b) (b) How Ppresented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counter-claim, cross-claim, or third-party claim, shallmust be asserted in the responsive pleading thereto if one is required. But a party , except that the following defenses may assert defenses in Rule 12(b)(1) through (b)(6) by at the option of the pleader be made by motion. If no responsive pleading is required, a party may assert at trial a defense to that claim. No defense or objection is waived by joining one or more other defenses or objections in a responsive pleading or motion. :

(2)(1) Lack of subject-matter jurisdiction over the subject matter,; (3)(2) Lack of personal jurisdiction over the person,;

(5)(3) Improper venue,; (6)(4) Insufficientcy of process,; (7)(5) Insufficiencyt of service of process,; (8)(6) Failure to state a claim upon which relief can be granted,; and (7) Failure to join a party under Rule 19. (9) No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15 (a).

17 (c) Motion for Jjudgment on the pPleadings. After the pleadings are closed but within early such enough time as not to delay the trial, any party may move for a judgment on the pleadings.

(d) Matters outside pleadings. On a Rule 12(b)(6) or 12(c) motion, if matters outside the pleadings are presented to the court and not excluded, the motion must be treated as one for Rule 56 summary judgment. All parties must be given reasonable opportunity to present all pertinent material.

(1) When the court grants a Rule 12 (b)(6) or 12(c) motion, leave to amend must be granted according to Rule 15(a) if matters outside the pleadings are not presented.

(d)(a) If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15 (a). (e)(a) Preliminary Hearings. The defenses specifically enumerated (1) through (7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings (subdivision (c) of this rule), shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for mMore Ddefinite Sstatement. If a pleading to which a responsive pleading is permitted allowed is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing his filing a responsive pleading. The motion shall must point out the pleading defects complained of and the desired details. desired.

(f)(1) If a court order granting the motion the motion is granted and the order of the court is not obeyed within ten 10 days after notice of the order or as otherwise stated in it, within such other time as the court may fix, the court may strike the deficient pleading to which the motion was directed or issue make an order it deems just such order as it deems just.

(f) Motion to Sstrike. The court may strike from a pleading an insufficient defense or a redundant, immaterial, impertinent, or scandalous matter:

18 (1) UpoOn a party’s motion made by a party before responding to a pleading; (2) or, iIf no responsive pleading is permitted by these rulesrequired, upon a party’s motion made by a party within thirty 30 days after the service of the pleading is served; upon him oor (3) upon the court’s On its own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.. (g) (h)(g) Consolidationg of Ddefenses in Mmotion. A party who makes a motion under this rule may join with it any other available Rule 12 motions. herein provided for and then available to him. If a the party makes a motion under this rule but omits therefrom any available Rule 12 defense or objection, a party then available to him which this rule permits to be raised by motion, he shallcannot not thereafter make a motion based on raise the omitted defense or objection so omitted, in another motion exceptunless Rule 12(h) astates otherwise. motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver Waiving orand Ppreservationg of Ccertain Ddefenses.

(a) (1) A defense of lLack of personal jurisdiction, over the person, improper venue, insufficiencytof process, or insufficiencyt of service of process is waived:

(A) (A) iIf omitted from a motion in the circumstances described in Rule 12subdivision (g);, or (B) (B) iIf it is not either maderaised by a motion under this rule, nor included in a responsive pleading, or in an or an aamendment under thereof permitted by Rule 15 (a) to be made as a matter of course.

(2) F (2) A defense of failure to state a claim upon which relief can be granted, a defenseof failure to join an indispensable party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made raised:

(A) iIn any pleading permitted allowed or ordered under Rule 7(a);, or (B) bBy a motion for judgment on the pleadings; , or (C) aAt the trial on the merits.

(3)

19 (3) Whenever it appears by suggestion that the parties or otherwise that the court lacks subject matter jurisdiction of the subject matter, the it court shall must dismiss the action or transfer the action it to the proper court.

(i) of proper jurisdiction.Preliminary Hhearings. Unless the court defers them until trial, the following must be heard and decided before then:

(1) Defenses in Rule 12(b)(1) through (7) asserted in a pleading or motion; and (2) A motion for judgment on the pleadings.

The defenses specifically enumerated (1) through (7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings (subdivision (c) of this rule), shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. (4) Advisory Committee Notes

The A motion for a more definite statement requires merely that:— a more definite statement and —and not evidentiary details. As one remedy for a vague or ambiguous pleading, a party—only when a responsive pleading is required—may move The motion will for a more definite statement lie only when a responsive pleading is required, and is one remedy for a vague or ambiguous pleading. A defendant may also file a Rule 12(b)(6) motion as a means of to challengeing a vague or ambiguous pleading.

Ordinarily, Rule 12(f) ordinarily will requires only the objectionable portions of the pleadings to be stricken rather than, and not the entire pleading. Since the issue for the court is whether an allegation is prejudicial to the adverse party, a Mmootions challenging going to redundant or or immaterial allegations, or allegations as to which relevancy is of which there is doubtful should be as to relevancy, should be denied., the issue to be decided being whether the allegation is prejudicial to the adverse party. When a Mmotions to strike an insufficient defense for insufficiency should, ifs granted, the court should also order be granted with leave to amend. . Under Rule 12(g), provides that a party making a pre-answer Rule 12 pre-answer motion pursuant to Rule 12 may join with such motionit any other available Rule 12 pre- answer Rule 12 motions. If a party makes a Rule 12 pre-answer Rule 12 motion and omits an available Rule 12 defense or objection, the party may only raise such the omitted defense or objection only as allowed by Rule 12(h)(2) allows. Rule 12(h)(2) allows a party to raise the defense of failure to state a claim, and/or the defense of failure to join an party

20 indispensable party under Rule 19, or both by asserting such defenses in (1) in the answer; (2) in , by raising such defenses in a motion for judgment on the pleadings;, or (3) by raising such defenses at the trial on the merits. Rule 12(g) encourages a party to consolidate all available Rule 12 motions so as to avoid successive motions.

Rule 12(h)(1) states that certain specified defenses which are available to a party when the party makinges a pre-answer motion, but which are omitted from the pre-answer motion, are waived, . The specified defenses includinge: (1) lack of personal jurisdiction; (2) improper venue; (3) insufficiencyt of process; and (4) insufficiencyt of service of process. In addition, under Rule 12(h)(1), further provides that if a party answers rather than filesing a pre-answer motion, the party must raise any of these specified defenses in the answer or an amended answer made as a matter of course pursuant according toto Rule 15(a) to avoid waiverer of such defenses.

Under Rule 12(h)(3), lack a question of subject matter jurisdiction may be presented at any time, either by motion or answer. Further, iIt may also be asserted as a motion for relief from a final judgment under Rule 60(b)(4) or may be presented ffor the first time on appeal. The provision dDirecting a court lacking without subject matter jurisdiction to transfer the action to a the proper court having jurisdiction that does preserves the traditional Mississippi practice of transferring actions between the circuit and chancery courts. See , as provided by Miss. Const. art. 6, §§157 (all causes that may be brought in the circuit court whereof the chancery court has jurisdiction shall must be transferred to the chancery court if it has exclusive jurisdiction); see also id. § and 162 (all causes that may be brought in chancery court whereof must be transferred to the circuit court if it has exclusive jurisdiction shall be transferred to the circuit court)). , bBut not reversing for because a court’s improperly exerciseding its jurisdiction. See , Miss. Const. art. 6, §147 (prohibiting reversals because action brought in wrong court). .

21

Rule 13. Counter-claim; and cross-claim.

(a) (a) Compulsory Ccounter-claims.

(1) A pleading shall must state as a counter-claim any claim which at the time of serving the pleading the pleader has against any opposing party at the time of servicei if:

(A) iIt arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) dDoes not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

(2) But the pleader does not need tnot stateassert the claim if:

(1)(A) aAt the time the action was commenced the claim was the subject of another pending action; ;or (2)(B) tThe opposing party brought suit sued upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not assterating any counter-claim under this rRule 13; or (3)(C) An insurer is defending tthe opposing party’s claim is one which an insurer is defending.

(3) In the event an otherwise compulsory counter-claim is not asserted in reliance upon on any exception stated in paragraph Rule 13(a), re-litigation of the claim may nevertheless be barred by the doctrines of res judicata or collateral estoppel by judgment may subsequently bar the claim iifn the event certain issues are determined decided adversely to the party electing not to asserting the claimit.

(b) Permissive Ccounter-Cclaims. A pleading may state as a counter-claim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

(c) Counter-Cclaim Eexceeding Oopposing Cclaim. A counter-claim may or or may not diminish or defeat the opposing party’s recovery sought by the opposing party. It may claim greater or different relief compared to exceeding in amount or different in kind from that relief requested sought in the opposing party’s pleading of the opposing party.

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(d) Counter-Cclaim Aagainst the State of Mississippi. These rules shall must not be construed to enlarge beyond the limits fixed by law the right to assert a counter-claims or to claim a credits against:

(1) tThe State of Mississippi; , (2) aA political subdivision; (3) , or aAn officer in his a representative capacity; or (4) An agent of the State of Mississippi or a political subdivisioneither. (d) (e) Counter-Cclaim Mmaturing or Aacquired Aafter Ppleading. A claim which either matured or was acquired by the pleader after serving his a pleading may, with the court’s permission of the court, be presented as a counter-claim by supplemental pleading.

(f) Omitted Ccounter-Cclaim. The court may allow a pleader to assert a counterclaim by amendment on just terms Wwhen a the pleader fails to set upassert a counter-claim:

(1) tThrough oversight, inadvertence, or excusable neglect,; or (f)(2) wWhen jusstice requires, he may by leave of court set up the counter-claim by amendment on such terms as the court deems just.

(g) Cross-cClaim Against against Cco -Pparty.

(1) A pleading may state as a cross-claim any claim by one party against a co--party arising out of the transaction or occurrence:

(A) tThat is the subject matter either of the original action or of a counter- cclaim therein in it or (B) That relatesing to any property that which is the subject matter of the original action.

(g)(2) Such The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant.

(h) Claims Eexceeding Ccourt’s Jjurisdiction. UpoWhen a counterclaim or cross claim exceeding jurisdictional limits isn the filed ing in the county court, by any party of a counter-claim or cross-claim which exceeds the jurisdictional limits of that court, and on upon thea motion by of all parties filed within twenty 20 days after the filing

23 of such counter-claim or cross-claim,, the county court shall must transfer the action to the circuit or chancery court with jurisdiction wherein the county court is situatedlocated and which would otherwise have jurisdiction..

(i) Joining der of Aadditional Pparties. Persons other than those parties made parties to the original action may be made parties to a counter-claim or cross-claim in accordaing ce with the provisions tof Rules 19 and 20.

(j) Separate Ttrial or s; Separate Jjudgment. If the court orders separate trials as provided in under Rule 42(b), judgment on a counter-claim or cross-claim may be rendered in accordiangce witoh the terms of Rule 54(b) when the court has jurisdiction so to do so, even if the claims of the opposing parties’ claims have been dismissed or otherwise disposed decided.of.

(k) Appealsed Actions. When an action in justice court or in another court not subject to these rules is appealed for a trial de novo to one that is subject to them, the following applies:

(1) When an action is commenced in the justice court or in any other court which is not subject to these rules and from which an appeal for a trial de novo lies to a court subject to these rules, aAny Rule 13(a) compulsory counter-claim made compulsory by subdivision (a) of this rule shallmust be stated as an amendment to the pleading within thirty 30 days after such the appeal has been perfected or otherwise within such furtheradditional time as the as the court may allow. (2) ; and oOther counter-claims and cross-claims shall must be permitted allowed as in an other cases.original jurisdiction action. (k) The lower court’s jurisdiction does not limit the amount of When aa defendant’s counter-claim or cross-claim, is asserted by a defendant in such an appealed case, and the defendant shall not be limited in amount to the jurisdiction of the lower court butmay shall be permitted to claim and recover the full amount of its claim irrespective of the jurisdiction of the lower court’s jurisdiction. (3)

Advisory Committee Notes

The purpose of Rule 13 is to grants the court broad discretion to allow claims to be joined in order to expedite the resolution of all the controversies between the parties in one suit and to eliminate the inordinate expense occasioned by circuity of action and multiple litigation.

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Subject to the exceptions stated in Rule 13(a), a counterclaims areis compulsory if they arising e out of the same transaction or occurrence that is the subject matter of the opposing party’s claim. A Ccompulsory counterclaims is are so closely related to the claims already raised, that they it can be adjudicated in the same action without creating confusion and should be adjudicated in the same action so as to avoid unnecessary expense and duplicative litigation. Rule 13 generally requires a compulsory counterclaims to be asserted in the pending litigation to avoid waiver.

All other counterclaims are permissive and may be asserted by the defending party. If trying the permissive counterclaim in the same case as the original claim is tried will create confusion, prejudice, unnecessary delay, or increased costs, the court has the discretion to order a separate trial on that the counterclaim be tried separately pursuant underto Rule 42(b).

Pursuant Under to Rule 13(g), a party may assert a cross-claim against a co-party if the crossclaim arises out of the same transaction or occurrence (1) that is the subject matter of the complaint; (2) or that is a counterclaim thereto the subject matter of the complaint; or (3) that relates to any property that which is the subject matter of the complaint. A Ccross- claims may be a derivative claims that asserting that the party against whom the cross-claim is asserted is or may be liable to the cross-claimant for all or part of the claim against the cross-claimant. A Pursuant to Rule 13, ccross-claims is are permissive rather than compulsory.

A party asserting a counterclaim or cross-claim may join additional parties as defendants to the counterclaim or cross-claim pursuant under to Rules 19 and 20.

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Rule 14. Third-party practice.

(a) When By the Ddefendant. May Bring in Third Party.

(1) When. A defending party may serve a summons and complaint on a nonparty who is or may be liable to the defending party for all or part of the plaintiff’s claim against the defendant party:

(A) After the action is commencedment of the action; (B) and upoOn being so authorization ed by the court in which where the action is pending; (C) oOn a motion; and (D) fFor good cause shown shown. , a defending party may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.

(2) Defenses; counterclaim; crossclaim.

(A) Defenses. The third-party defendant (e.g., Tthe person served with the summons and third-party complaint), hereinafter called the third-party defendant, shall must make assert his defenses to the third-party plaintiff’s claim as provided in according to Rule 12.

(B) Counterclaim; crossclaim. The third-party defendant must assert and his a counter-claims against the third-party plaintiff and a cross-claims against other third-party defendants as provided inaccording to Rule 13.

(3) Defenses; counterclaim: scope.

(A) Scope of defenses. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. (B) Scope of counterclaim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

(4) Crossclaim: scope; response.

26 (A) Scope of crossclaim. The plaintiff may assert any claim against the third- party defendant a claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. (B) Response to crossclaim. If so, and the third-party defendant thereupon shallmust assert his defenses, counterclaims, and crossclaims as provided inaccording to Rules 12 and his counter-claims and cross-claims as provided in Rule 13.

(5) Motion to strike, sever, or for separate trial. Any party may move to strike the third-party claim, or for its severance, or for separate trial.

(a)(6) By a third-party defendant. A third-party defendant may proceed under this rule against any nonpartyperson not a party to the action who is or may be liable to him the third-party defendant for all or part of the plaintiff’s claim made in the action against the third-party defendant.

(b) When By the Pplaintiff May Bring in Third Party. When a counter-claim is asserted against a plaintiff, the plaintiff may bring in cause a third party to be brought in under circumstances which under this rule would entitlinge a defendant to do so under this rule..

(c) [Admiralty and Mmaritime Cclaims.] [Omitted].

[Former Rule 14 deleted effective May 5/1/, 1982; new Rule 14 adopted effective July 7/1/, 1986.]

Advisory Committee Historical Note Effective July 7/1/, 1986, a new Rule 14 was adopted. 486-490 So. 2d XVII (West Miss. Cas. 1986).

Effective May 5/1/, 1982, Rule 14 was abrogated. 410-416 So. 2d XXI (West Miss. Cas. 1982).

Advisory Committee Notes

It is essential that a third-party defendant’s liability for a the third-party plaintiff’s claim be for some form of derivative or secondary liability of the third-party defendant to the third-party plaintiff. Impleader is not unavailable for the assertiong of an independent

27 action by the defendant against a third party, even if the claim arose out of the same transaction or occurrence as the main claimone. But Oonce a third-party claim is properly asserted, however, the third-party plaintiff may assert whatever additional claims the third- party plaintiff has against the third-party defendant under Rule 18(a).

The requirement that the third-party claim be forof derivative or secondary liability may be met by, for example, by an allegationg of a right of contractual or other indemnity (contractual or otherwise), contribution, subrogation, or warranty. But Tthe rules does not, however create any derivative or secondary such rights. It merely provides a procedure for expeditinged consideration of derivative or secondary these rights where they are available under substantive law.

An insured party has a derivative claim for indemnity against the insured party’s liability insurer; , and the insured party may implead the party’s liability insurer, if the insured is being sued for damages allegedly covered by the liability policy and if the insurer is disclaimsing coverage under pursuant to the liability policy. A defendant who is subject to joint and several liability for a plaintiff’s damages may have a claim against joint tortfeasors for contribution. The fact Generally, in that in Mississippi, liability for damages imposed in civil cases based upon “fault” is generally several only and rather than not joint and several, thereby obviatesing the need or basis for contribution claims. But under Mississippi Miss. Code Ann. § otated section 85-5-7(4), however, provides that “‘[j]oint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortuous act, or who actively take part in it.” The statute further also provides states that “[a]ny person held jointly and severally liable under [such]this section shall have a right of contribution from his . . . fellow defendants acting in concert.” As a result, Thus, Mississippi law grants a defendant who has been held jointly and severally liable for acting in concert has a right of contribution against codefendants who were also acting in concert.

A first-party insurer against loss, sued by its policyholder for such the loss, has a derivative claim for subrogation against, and may implead the person who allegedly caused it; the insurer may implead the personthe loss, where a right of subrogation would arise from if the insurer’s paidyment of the insured plaintiff’s claim.

Because the rule expressly allows third-party claims against one who “may" be liable,” it is not an objectionable to implead that the third party’s liability is contingent on the original plaintiff’s recovery against the defendant or /third-party plaintiff.

Unlike the analogous federal rule, Rule 14 of the Mississippi Rules of Civil Procedure M.R.C.P. 14 differs from Fed. R. Civ. P. 14 in that M.R.C.P. 14 requires es a defending

28 party to obtain the court’s authorization from the court based upon a showing of good cause before such defending party may servinge a summons and third-party complaint upon a nonparty. Pursuant Under Rule 14 of the Federal Rules of Civil Procedure, to Fed. R. Civ. P. 14, a defending party must obtain leave of court only if it is filing a third-party complaint more than 14 days after serving its the original answer.

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30 Rule 15. Amended and supplemental pleadings.

(a) Amendments.

(1) As a matter of course. A party may amend a pleading as a matter of course:

(A) at any time bBefore a responsive pleading is served;, or, (B) Within 30 days of service if:

(i) if a pleading is one to which nNo responsive pleading is permitted allowed; and (ii) tThe action has not been placed set upon for the trial calendar, the party may so amend it at any time within thirty days after it is served.

(2) When Rule 12 motion granted. When On sustaining a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, or a Rule 12(c) pursuant to Rule 12(b)(6), or motion for judgment on the pleadings, pursuant to Rule 12(c) is granted, as long as matters outside the pleadings are not presented at the motion hearing, leave to amend shall must be granted when justice so requires upon conditions and within a time period the court as determinedecidesd by the court, provided matters outside the pleadings are not presented at the hearing on the motion.

(3) When otherwise. Otherwise, a party may amend a pleading only by leave of court or upon the adverse party’s written consent of the adverse party; leave shall must be freely given when justice so requires it.

(4) Response to amended pleading. Unless the court orders otherwise, Aa party shall must plead in response to an amended pleading within the longer of:

(A) within tThe time remaining for respondingse to the original pleading; or (b)(B) within ten 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders is served..

(b) Amendment to Cconform to the Eevidence. When iIssues not raised by the pleadings are tried by expressed or implied consent of the parties must, they shall be treated in all respects as if they had been raised in the pleadings.

31 (1) When. Such aAmendingment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be requested in made upon a party’s motion of any party at any time, including even after judgment. ; bBut failing ure so to do so amend does not affect the result of the trial of these issues.

(2) Trial objection. At trial, Iif evidence is objected to at the trial on the ground that as outside it is not within the issues asserted made byin the pleadings, the court may allow the pleadings to be amended. The court and shall must do so freely when if the presentingation of the merits of the action will be subserved thereby and if the objecting party fails to satisfy the courtshow that the admittssiong of suchthe evidence would prejudice the maintaining of the action or defense upon the merits.

(A) Continuance. The court may grant a continuance to enable the objecting party to meet such the evidence.

(c)(3) Amendment when justice so requires. The A court is to beshould liberally in granting permission to amend when justice so requires.

(c) Relation Bback of Amendments.

(1) Same conduct, transaction, or occurrence. Whenever the claim or defense asserted in the an amended pleading arose out of the conduct, transaction, or occurrence set forthstated or attempted to be set forthstated in the original pleading, the amendment relates back to the date of the original pleading.

(2) Amending party. An amendment changing the party against whom a claim is asserted relates back if it arose out of the conduct, transaction, or occurrence stated or attempted to be stated in the original pleading the foregoing provision is satisfied and if, within the period provided stated in by Rule 4(h) for servingce of the summons and complaint, the party to be brought in by amendment:

(a) (2) hHas received such notice of the institution of the action to the extent that the party will not be prejudiced in maintaining the party’s defense on the merits;, and (A) (B) kKnew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

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(3) Rule 9(h) amendment. A Rule 9(h) n amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

(d) (d) Supplemental Ppleadings. UpoOn a motion of a partymotion, reasonable notice, and just terms, the court may , upon reasonable notice and upon such terms as are just, permitallow the a party to serve a supplemental pleading setating forth transactions, occurrences, or events which that have happened since the date of the original pleading sought to be supplemented..

(1) Permission may be granted even though the original pleading is defective in its statiementg of a claim for relief or a defense. (2) If the court rdeems equires it advisable that the adverse party to plead in response to the supplemental pleading, it shall must so order the party to do so and , specifying the time thereforfor pleading.

[Amended effective July 1, 19987/1/98; amended effective April 17, 20034/17/03 to allow amendments on dismissal under Rule 12(b)(6) or judgment on the pleadings under Rule 12(c) where the court determines decides that justice so requires.]

Advisory Committee Historical Note

Effective July 7/1/, 1998, Rule 15(c) was amended to state that the relation back period includes the time permitted allowed for service of process under Rule 4(h).

Advisory Committee Notes

Unlike the analogous federal rule, Mississippi Rule of Civil Procedure 15(a) varies from Federal Rule 15(a) in that places no limit on the number of amendments as a matter of course; the federal rule permits allows a party to amend the pleading only once as a matter of course. The Mississippi rule places no limit on the number of such amendments.

33 Rule 16. Pre-trial procedure.

(a) Pretrial conference.

(1) When. On In any action the court may on its own or motion or on the a party’s motion of any party, the court may order the parties’ attorneys to appear at least 20 days before trial for one or more pretrial conferences. And must do so on a motion by all parties.

(2) Purpose; court action. At a pretrial conference, the court and parties may consider the following subject matter, and the court may take appropriate action regarding it:

(A) The possibility of settling the action; (B) Simplifying the issues; (C) Amending the pleadings if desirable or necessary; (D) Itemizing expenses and special damages; (E) Limiting the number of expert witnesses; (F) Exchanging reports by expert witnesses expected to testify at trial; (G) Exchanging medical reports, medical records, billing records, and similar documents to the extent doing so does not waive the physician-patient privilege; (H) Referring matters to a master; (I) Imposing Rule 37 sanctions; (J) Obtaining admissions and stipulations about facts, documents, and other exhibits to avoid unnecessary proof; (K) Proposing jury instructions or findings of fact and conclusions of law subject to subsequent amendments or supplements as justice may require; and (L) Other matters that may aid in disposing of the action.

and shall on the motion of all parties, direct the attorneys for the parties to appear before it at least twenty days before the case is set for trial for a conference to consider and determine: (b) The possibility of settlement of the action; (c) the simplification of the issues; (d) the necessity or desirability of amendments to the pleadings; (e) itemizations of expenses and special damages; (f) the limitation of the number of expert witnesses; (g) the exchange of reports of expert witnesses expected to be called by each party;

34 (h) the exchange of medical reports and hospital records, but only to the extent thatsuch exchange does not abridge the physician-patient privilege; (i) the advisability of a preliminary reference of issues to a master for findings to beused as evidence when the trial is to be by jury; (j) the imposition of sanctions as authorized by Rule 37; (k) the possibility of obtaining admissions of fact and of documents and other exhibitswhich will avoid unnecessary proof; (l) in jury cases, proposed instructions, and in non-jury cases, proposed findings offact and conclusions of law, all of which may be subsequently amended or supplemented as justice may require; such other matters as may aid in the disposition of the action.Pretrial order. (b)

(1) The court may enter an order reciting the After a pretrial conference, the court may issue an order regarding all action taken at it, including: action taken at the conference

(A) Amendments , the amendments allowed toto the pleadings; (B) , and the aAgreements made by the parties as to any other matters considered at the pretrial conference; considered (C) , and lLimiting issues for trial to those not disposed of by admissionss or agreements of counsel; and (D) Other similar subject matter. s of counsel; and

(2) The such oorder when entered shall controls the subsequent course of the action’s course, unless the court modifies it to prevent manifest injustice. d

at the trial to prevent manifest injustice. [Amended effective March 3/1/, 1989; April 4/13/, 2000.]

Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 16 was amended to allow the conference to be held pursuant on to the court’s motion. 753-754 So. 2d. XVII (West Miss. Cas.. 2000.)

Effective March 3/1/, 1989, Rule 16 was amended to abrogate provisions for a pretrial calendar. 536-538 So. 2d XXI (West Miss. Cas. 1989).

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36 Rule 16aA. Recusal motionMotions for recusal. of judges

Motions A motion seeking the recusal of a judge’s recusals shall must be timely filed with the trial judgecourt. Procedures in t and shall be governed by procedures set forth in the Uniform Rules of Circuit and County Court Practice and or the Uniform Rules of Chancery Court Rules control a motion for recusal. Practice. [Adopted, April 4/4/, 2002.]

Advisory Committee Historical Note [Rule 16A]

Effective April 4/4/, 2002, Rule 16A and the Comment Advisory Committee Historical Note were adopted. 813-815 So. 2d LXXXI (West Miss. Cases 2002).

37 CHAPTER SECTION IV4. PARTIES

Rule 17. Parties pPlaintiff and defendant; capacity.

(a) Real Pparty in Iinterest.

(1) Who may sue. Every An action shall must be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute The following may sue in his a representative capacity without joining with him the party for whose benefit the action is brought:

(A) An executor; (B) An administrator; (C) A guardian; (D) A bailee; (E) A trustee; (F) A party with whom or in whose name a contract has been made for the benefit of another; or (G) A party authorized by statute.

(a)(2) Not basis for dismissal. The court may . Nnot dismiss an action shall be dismissed on the grounds that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for the real party in interest’s ratification, ication of commencement of the action by, or joinder, or substitution. The real party in interest’s of, the real party in interest; and such ratification, joinder, or substitution shall hasve the same effect as if the action had been commenced in the name of the real party in interest.

(b) Subrogation Ccases. In a subrogation cases, regardless of whether subrogation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim the action shall must be brought in the subrogee’s name of the subrogee. if the subrogor no longer has a pecuniary interest in the claim

(b)(1) If the subrogor still has a pecuniary interest in the claim, the action shall must be brought in the subrogor’s and subrogee’s names of the subrogor and the subrogee.

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(c) Infants; or Persons Under Llegal Ddisability. When ever a party to an action is an infant or is is under legal disability and has a representative duly appointed under the Mississippi laws of the State of Mississippi or the laws of a foreign state or country, the representative may sue or defend on behalf of such that party.

(1) Guardian ad litem. An unrepresented party defendant who is an infant or is under legal disability and is not so represented may be represented by a guardian ad litem appointed by the court when the court considers such appointment necessary for the protectiong of that defendant’s the interest of such defendant. The guardian ad litem shall must:

(A) bBe a Mississippi resident; of the State of Mississippi, shall (B) fFile his consent and oath with the clerk;, and s (C) hall gGive such bond as the court may require.

(2) The court may make issue any other orders it deems proper for the protectiong of the defendant.

(3) When the interest of an unborn or unconceived person’s interest is before the court, the court may appoint a guardian ad litem for such that person’s interest.

(c)(4) If an infant or incompetent person does not have a duly appointed representative, the person may sue by his a next friend.

(d) When Gguardian Aad Llitem required; How Choselection. When ever a guardian ad litem is requiredshall be necessary, the court in whichwhere the action is pending:

(1) shall Must appoint an attorney to serve in that capacity; (2) . In all cases in which a guardian ad litem is required, the court must ascertain Order payment of a reasonable fee or compensation to be allowed and paid to such the guardian ad litem for rendered his services rendered in such cause; and (d)(3) Require the guardian ad litem’s fee or compensation to , to be taxed as a part of the costs in such the action.

(e) Public Oofficers. When a public officer sues or is sued in his an official capacity, the person may be described as a party by his official title rather than by name. ; bBut the court may require his the officer’s name to be added.

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40 Rule 18. Joinder: of claims; and remedies.

(a) Joinder of Cclaims. A party asserting a claim to relief as an original claim, counter- claim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as the phartys has against an opposing party.

(b) Joinder of Rremedies. Prior to these rules, Wheneverif a claim is was one heretofore cognizable only after another claim one whass been prosecuted to a conclusion, the two claims may be joined in a single action. ; bBut the court shall must grant relief in that action only in accordiangce witoh the parties’ relative substantive rights of the parties. (b) Advisory Committee Notes

Rule 18(a) eliminates any restrictions on claims that may be joined in actions in the Mississippi courts of Mississippi. Rule 18(a) permits allows legal claims, and equitable claims, or any combination of them to be joined in one action; a party may also assert alternative claims for relief, and consistency among the claims is unot being necessary. As a re; consequentlty, an election of remedies or theories will not be required at the pleading stage of litigation.

Since Rule 18(a) deals only with the scope of joinder at the pleading stage and not with questions of trial convenience, jurisdiction, or venue, a party should be permitted allowed to join all claims against an opponent as a matter of right. The rule proceeds on the theory that no inconvenience can result from the joinder of any two or more matters in the pleadings and, but only from trying two or more matters together , if at all.

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Rule 19. Required Jjoinder of paertiesons needed for just adjudication.

(a) (a) Persons to Bbe Jjoined if Ffeasible. A person who is subject to the court’s jurisdiction of the court shall must be joined as a party in the action if:

(1) iIn the perison’s absence complete relief cannot be accorded among those already parties;, or (1) T (2) he person claims an interest relating to the subject of the action and is so situated that thedispositiong of ithe action in the perison’s absence may:

(A) (i) aAs a practical matter impair or impede the perison’s ability to protect that interest; or (2)(B) Subject (ii) leave an existing ny of the persons already partyies subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason ofecause of the perison’s claimed interest.

(3) If the person has not been so joined as required, the court shall must order that the person be made a party. If he A person who should join as a plaintiff but refuses to do so , he may be made a defendant or, if n a proper case, an involuntary plaintiff.

(b) Determination by Court WhWhen ever Jjoinder is Nnot Ffeasible. If a person as described in Rsulebdivision 19(a) hereof cannot be made a partyjoined, the court shall must determine decide whether in equity and good conscience the action should proceed among the existing parties before it or should be dismissed because , the absent person is being thus regarded as indispensable. The factors tfor bthe court to considered by the court include:

(1) First, tTo what extent a judgment rendered in the person’s absence might be prejudicial to that personim or those already parties; (2) second, tThe extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures can lessen or avoid, the prejudice can be lessened or avoided; (3) third, wWhether a judgment rendered in the person’s absence will be adequate; and (b)(4) fourth, wWhether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

42 (c) Pleading Reasons for Nnonjoinder. To the extent known to the pleader, Aa pleading asserting a claim for relief shall must state the names, if known to the pleader, of any persons as described in subdivision Rule 19(a)(1) through (2) who are not joined, and the reasons why they are not joined. (c)

43 Advisory Committee Notes

Compulsory joinder is an exception to the general practice of giving the plaintiff the right to decide who shall will be parties to a law suit; although a court must take acknowgnizancledge of this traditional prerogative in exercising its discretion under Rule 19, plaintiff’s choice will have to be compromised when significant countervailing considerations make the joinder of particular absentees desirable.

There are at least four main questions to be considered under Rule 19: (1) first, the plaintiff’s interest in having a forum; second,(2) the defendant’s wish interest in to avoiding multiple litigation, inconsistent relief, or sole responsibility for a liability shared with another; (3)third, an outsider’s the interest in joinderof an outsider whom it would have been desirable to join;; and (4) fourth, the court’s and public’s interest of the courts and the public in completely, consistently, and efficiently settling ement of controversies. This list is by no means exhaustive or exclusive; pragmatism controls.

There is no precise formula for determining whether a particular nonparty must be joined under Rule 19(b). The decision has to be made in terms of the general policies of avoiding multiple litigation, providing the parties with complete and effective relief in a single action, and protecting the absent persons from the possible prejudicial effect of due to deciding the cases without them. Account also must be taken of wWhether other alternatives are available to the litigants must also be considered. By its very nature Rule 19(b) calls requires for determinations that are heavily influenced by the facts and circumstances of individual cases.

44 Rule 20. Permissive joinder of parties.

(a) Permissonsive who may be Jjoineder.

(1) Plaintiffs. All pPersons may join in one action as plaintiffs if:

(A) tThey assert any right to relief jointly, severally, or in the alternatively witnh respect tof or arising out of the same transaction, occurrence, or series of transactions or occurrences;, and (B) if aAny question of law or fact common to all of thesem persons will arise in the action.

(2) Defendants. All pPersons may be joined in one action as defendants if:

(A) there is asserted against them jointly, severally, or in the alternative, aAny right to relief is asserted against them jointly, severally, or alternatively withn respect tof or arising out of the same transaction, occurrence, or series of transactions or occurrences;, and (B) A question of law or fact common to all defendants will arise in the action.

(a)(3) if any question of law or fact common to all defendants will arise in the action. Neither Aa plaintiff nor a defendant needs ntot be interested in obtaining or defending against all demanded the relief. demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

(b) Separate Ttrials. The court may make such orders as will prevent a party from being embarrassed, delayed, or spubjected to expense byif the inclusion of a party against whom the party asserts no claim is asserted against or by and who asserts no claim against the party. The court , and may also order separate trials or make otherwis orders to prevent delay or prejudice.

[Amended February 2/20/, 2004 to make rule gender neutral.]

Advisory Committee Notes

Rule 20(a) permits allows joinder in a single action of all persons asserting or defending against a joint, several, or alternative right to relief if (1) that right arises out of the same transaction or occurrence or series of transactions or occurrences and (2) presents a

45 common question of law or fact. The phrase “transaction or occurrence” requires that ther existence of be a distinct litigable event linking the parties. Rule 20(a) simply establishes a procedure under which several parties’ demands arising out of the same litigable event may be tried together and, thereby avoidsing the court and parties’ the unnecessary loss of time and money to due to the court and the parties that the duplicate presentation of the evidence relating to facts common to more than one demand for relief would entail..

Joinder of parties under Rule 20(a) is not unlimited as is joinder of claims under Rule 18(a). Rule 20(a) imposes two specific prerequisites to the joinder of parties: (1) a right to relief must be asserted by or against each plaintiff or defendant relating to or arising out of the same transaction, occurrence, or the same series of transactions or occurrences; and (2) some question of law or fact common to all the parties will arise in the action. Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a). See Am.erican Bankers, Inc. of Florida v. Alexander, 818 So. 2d 1073, 1078 (Miss. 2001).

However, But even if the transaction requirement cannot be satisfied, there always is a possibility always exists that , under the proper circumstances, separate actions can be instituted and then consolidated for trial under Rule 42(a) if there is a question of law or fact common to all the parties. See Stoner v. Colvin, 236 Miss. 736, 748, 110 So. 2d 920, 924 (1959) (courts of general jurisdiction have inherent power to consolidate actions when called for by the circumstances). If the criteria of Rule 20 criteria are otherwise met, the court should consider whether different injuries, different damages, different defensive postures, and other individualized factors will be so dissimilar as to make managing Rule 20 consolidated ement of cases consolidated under Rule 20 impractical. See Illinois Cent. R.R. Co. v. Travis, 808 So. 2d 928, 934 (Miss. 2002) (citing Demboski v. CSX Transp., Inc., 157 F.R.D. 28 (S.D. Miss. 1994) cited with approval in Illinois Cen. R.R. Co. v. Travis, 808 So. 2d 928, 934 (Miss. 2002).).

In order to allow the court to make a promptly dectermidnatione of whether joinder is proper, the factual basis for joinder should be fully disclosed as early as practicable, and motions questioning joinder should be filed , where possible, sufficiently early to avoid delaying s in the proceedings.

46 Rule 21. Misjoinder and nonjoinder of parties.

Misjoinder of parties is not ground a basis for dismissingal of an action. Parties may be dropped or added by court order of the court on a party’s motion of any party or the court of on its own initiative at any stage of the action and on such terms that as are just. Any claim against a party may be severed and proceeded with separately. Advisory Committee Notes

Rule 21 applies, for example, when: (1) the joined parties do not meet the requisites of Rule 20 requirements; (2) no relief has been demanded from one or more of the parties joined as defendants; (3) no claim for relief is stated against one or more of the defendants; or (4) one of several plaintiffs does not seek any relief against the defendant and is without any real interest in the controversy.

Rules 17 and 19 should be used as reference points for what is meant by nonjoinder in Rule 21. Thus, Rule 21 simply describes the procedural consequences of failing to join a party as required in Rules 17 and 19.

47 Rule 22. Interpleader.

(a) Plaintiff or Ddefendant.

(1) Plaintiff. When the plaintiff is or may be exposed to double or multiple liability, a pPersons having with a claims against the plaintiff may be joined as a defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.

(A) Joinder is proper even though:

(i) It is not ground for objection to the joinder that Tthe claims of the several claimants or the titles on which their claims depend do not have lack a common origin, or are adverse to and independent of one another rather nothan identical; but are adverse to and independent of one another, or that (ii) tThe plaintiff davenires that he is not liabilitye in whole or in part to oaney or all mof thre claimants.

(2) Defendant. A defendant exposed to similar liability may obtain such iseek interpleaderer by way of cross-claim or counter-claim.

(a)(3) Relation to Rule 20. The provisions of this rule supplements and does not in any way limit the joinder of parties permitted in Rule 20.

(b) Release Ffrom Lliability; Ddeposit or Ddelivery.

(1) Any party seeking interpleader , asunder provided in sRubdivisionle 22 (a):

(A) of this rule, mMay deposit with the court the claimed amount claimedwith the court; (B) , or dDeliver to the court or as otherwise directed by the court, theclaimed property to the court; or (C) Deliver claimed property as the court otherwise ordersclaimed.

, and Tthe court may thereupon order such party discharge thed party from liability as to sucthose claims, and the action shall continues as between the claimants of tsuche money or property. (2)

48

Advisory Committee Notes

The protection afforded by interpleader takes several forms. Most significantly, it prevents a stakeholder from being obligated to determine decide at the istakeholder’s peril which claimant has the better claim. and, wWhen the stakeholder himself has no interest in the fund, interpleader forces the claimants to contest what essentially is a controversy between them without embroiling the stakeholder in the litigation over the merits of the respective claims. Even if the stakeholder wholly or partly denies liability , either in whole or in part as to one or more of the claimants, interpleader still protects the stakeholderim from the vexation of multiple suits and the possibility of multiple liability that could result from adverse determinations in different courts. ThusAs a result, interpleader can be employed to reach an early and effective determination of disputed questions withile a consequent saving of the parties from trouble and expense. for the parties. LAs ike s true of the other liberal joinder provisions in these rules, interpleader also benefits the judicial system by condensing numerous potential individual actions into a single comprehensive unit while saving court , with a resulting savings in court ttime and energy..

Interpleader also can be used to protect the claimants by bringing them together in one action and by reaching an equitable division of a limited fund. This situation frequently arises when the insurer of an alleged tortfeasor is faced with claims aggregating more than its liability under the policy. If Were anan insurance company were required required to await until claims were reducedtion of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate share of the fund before otheris fellow claimants were able to established their claims. The resulting difficulties such a race to judgment poses poses for the insurer, and the unfairness which may result to some claimants, are among the principal evils the interpleader device is intendsed to remedy.

An additional advantage of interpleader to the claimant is that it normally involves a deposit of the disputed funds or property in court. The deposit, thereby eliminatesing much of the delay and expense that often associatedttends with the enforcingement of a money judgment.

The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears multiple vexations directed against a single fund.

Ordinarily, iInterpleader ordinarily is conducted in two “stages.” In the fFirst, the court hears evidence to determine decide whether the plaintiff is entitled to interplead the

49 defendants. In the sSecond stage, the court a dectermidesnation is made on the merits of the adverse claims on the merits and, if appropriate, if appropriate, on the rights of an interested stakeholder’s rights..

After the stakeholder has paid the disputed funds into court, or given bond therefor,, and once tthe claimants have had notice and an opportunity to be heard, the court determines decides whether the stakeholder is entitled to interpleader relief. If so, the court will enter an order requiring the claimants to interplead and andi, if the stakeholder is disinterested,, discharging discharge the stakeholder from the proceeding and from further liability with regarding to the interpleader fund. The court may also permanently enjoin the claimants from further subsequently harassing the stakeholder with the claims or judicial proceedings.

There is, however, But no an inflexible rule that the proceeding must be divided into two stages does not exist. The entire action may be disposed of at one time in cases where, for example, the stakeholder has not moved to be discharged or has remained in the action by reason of an interest therein it. In the event that deciding the second one does not resolve another dispute between the stakeholder and prevailing claimant or among prevailing claimants, Tthere may even be a third stage., in the event that the second stage determination leaves unresolved some further dispute, either between the stakeholder and the prevailing claimant or among the prevailing claimants.

Trial during stages later than the first is also appropriate for counterclaims raised by the claimants like , such as those alleging an independent liability, and for cross-claims between claimants which are held appropriate for resolvutiong in the course of the interpleader proceedings.

50

Rule 23. Class actions. [oOmitted].

51 Rule 23.1. Shareholder dderivative actions. by shareholders [oOmitted].

52

Rule 23.2. aActions relating to unincorporated associations. [Omitted].

53

Rule 24. Intervention.

(a) (a) Intervention of Rright.

(1) When. UpoOn a timely applicationmotion, anyone musthall be permitted allowed to intervene in an action:

(1)(A) wWhen a statute confers an unconditional right to intervene; or (2)(B) wWhen the applicant movant claims an interest relating to the property or transaction which is the subject of the action, and he is so situated that the as a practical matter, didispositiong of the action may as a practical matter impair or impede theis ability to protect that interest, unless existing partiesthe applicant’s interest is adequately represent ited by existing parties.

(b) (b) Permissive Iintervention.

(1) When. UpoOn a timely moapplication, anyone may be permitted allowed to intervene in an action:

(1)(A) wWhen a statute confers a conditional right to intervene; or (2)(B) wWhen a common question of law or fact exists between a movant’s n applicant’s claim or or defense and the main action have a question of lawor fact in common.

(2) Government officer or agency: when; factors to consider.

(A) When. An Wofficer or agency may intervene in the action on a timely motion when hen aa party’s claim or defense relies:

(i) to an action relies for ground of claim or defense upoOn any statute or or executive order administered by a federal or or state governmental officer or or agency,; or (ii) or On a upon any regulation, order, requirement, or agreement issued or made pursuandert to the statute or or executive order.,

(B) Factors to consider. the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion, the court

54 musthall consider whether the intervention will unduly delay or prejudice the adjudicationg of the original parties’ rights of the original parties.

(c) Procedure.

(1) Motion; service. A person dseeskiring to intervene musthall serve a motion to intervene upon the parties as provided iunder Rule 5. (2) Form. The motion mushatll state the grounds therefor it and shall be accompanied by a pleading setating forth the claim or or defense for which intervention is sought. (c)(3) Statutory right. The same procedure musthall be followed when a statute gives a right to intervene is based on a statute.

(d) Intervention by the Sstate. A party asserting a statute is unconstitutional must notify the Mississippi Attorney General within enough time to afford an opportunity to intervene and argue that question Iin any action:

(1) (1) tTo restrain or or enjoin the enforcement, operation, or execution of a Mississippi ny statute of the State of Mississippi by restraining or or enjoining the action of any state officer; of the State or any political subdivision; thereof, or the action of any agency, board, or commission acting under state law, in which where a claim is asserted that the statute under which the action sought to be restrained or enjoined is to be taken is unconstitutional is asserted; or

(2) , or (2) fFor Rule 57 declaratory relief that includes brought pursuant to Rule 57 in which a declarationg or or adjudicationg of the unconstitutionality of any Mississippi statute of the State of Mississippi is among the relief requested, the party asserting the unconstitutionality of the statute shall notify the Attorney General of the State of Mississippi within such time as to afford him an opportunity to intervene and argue the question of constitutionality. (d) Advisory Committee Notes

Rule 24 requires the court to balance the interests of the would-be intervenor against the burdens such intervention might pose on thosexisting already parties or on the judicial system’s economic and efficient disposition of the case. If one of the criteria for intervention as a matter of right is met and if the would-be intervenor files a timely applicationmotion for intervention, intervention musthall be allowed. See Dare v. Stoke, 62 So. 3d 958, 959 (Miss. 2011). A trial court has discretion when ruling on a timely motion tfor permissively interventione and “may permissively grant or deny a motion to intervene,

55 provided there is a common question of law or fact and the motion was timely filed.” See Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So. 3d 1209, 1215 (Miss. 2010).

Applications A motion to intervene as of right or for permissive intervention pursuandert to Rule 24(a) and Rule 24(b) or to permissively intervene pursuant to Rule 24(b) must be timely. Rather than including The rule does not set out any specific time limits in the rule, . Instead, trial courts should are to weigh the following four factors when determining deciding timeliness: “(1) the length of time during which the would-be intervenor actually knew or should have known of his an interest in the case before he petitioninged for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as he an interest in the case was actually kneown or reasonably should have been known of his interest in the case; (3) the extent of the prejudice that the would- be intervenor may suffer if his petition for leave to intervene is denied; and (4) the existence of unusual circumstances mitigating either for or against a dectermidnationg that the application motion is timely.” See Hood ex rel. State Tobacco Litig.ation v. State, 958 So. 2d 790, 806 (Miss. 2007). A trial court has discretion to The ddecideetermination of whether a motion n application to intervene is timely is committed to the discretion of the trial court and will not be overturned on appeal absent an abuse of discretion.

56

Rule 25. Substitutiong of parties.

(a) (a) Death.

(1) Substitution if not extinguished. If If a party’s dies ath dnd the claim is noes not thereby extinguish a claimed, on a motion to do so, the court mushtall, uponmotion, order substitution of the proper parties.

(A) The motion for substitution may be made filed by any party or by the deceased party’s successors or or representatives of the deceased party. The motion and a, together with the notice of hearing, musthall be served on nonthe parties and parties as provided in according to Rules 4 and 5. and upon persons not parties in the manner provided in Rule 4 for the service of summons. (1)(B) The action musthall be dismissed without prejudice as to the deceased party if the motion for substitution is not filmaded within ninety 90 days after the death is suggested upon in the record by servicnge of a statement of the fact of the death as stated in Rule 25(a)(1)(A). as herein provided for the service of the motion.

(2) Continuation. AfIn ther a pareventy’s of the death, of one or more of the plaintiffs or of one or more of thedefendants in an action in which theif the right sought to be enforced survives only to or against rthema surviviningg plaintiff or onlty agaienst, the surviving defendants, the action does not abate. The death musthall be suggested upoin the record, and the action musthall proceed in favor of or against the surviving parties.

(b) Legal Ddisability. If a party comes under a legal disability, the court upon a motion served as provided stated in Rule 25subdivision (a)(1)(A), of this rule court may allow the action to be continued by or against thise party’s representative.

(c) Transferring of Iinterest. If n case of any transfer of an interest is transferred, the action may be continued by or against the original party, unless on a motion served as stated in Rule 25(a)(1)(A) the court upon motion directs the person to whom the interest is transferreed to be substituted or joined in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

57 Public Officers; Death or Sseparation Frofm public Oofficer. When a public officer is a party to an action in anhis official capacity and duriesng its pendency dies, resigns, or otherwise ceases to hold the office while the action is pending, the action does not abate, and thise officer’s successor is automatically substituted as a party. Proceedings fFollowing the substitution, proceedings musthall be in the party’s name of the party, but any misnomer not affecting the parties’ substantial rights of the parties mushallt be disregarded. The court may An order of substitution may be entered aat any time; , but failing to do so the omission to does enter such an order shall not affect the substitution. (d)

Advisory Committee Notes

The suggestion of death does not have to identify the decedent’s successors or representatives to be substituted as the real party in interest. See Clark v. Knesal, 113 So. 3d 531, 536 (Miss. 2013). Although the rule requires that service of the suggestion of death to be served upon a non-partyies be accomplished in accordaingce witoh Rule 4, ithe rule does not indicate which non-partyies must be served with the suggestion of death so as to trigger the ninety90-day time period. An Iinterested non-partyies must be served if the nonparty’s whose rights may be cut off by the ninety90-day limits must be served. See Hurst v. SW Miss. Legal Servs., 610 So. 2d 374, 386 (1992) (defendant’s failure to serve the named executrix of the deceased plaintiff’s estate with the suggestion of death rendered the suggestion of death ineffective even though the executrix may have had actual notice of the suggestion of death); Knesal, 113 So. 3d at 537 (defendant–/counterplaintiff who was properly served with the suggestion of death could not argue that the failure to serve the plaintiff–/counter-defendant’s non-partynonparty successors rendered the suggestion invalid because: (i1) the failure to serve the plaintiff/counter-defendant’s non-party successors did not affect the defendant/counter-plaintiff’s opportunity to file a motion to substitute; and (ii2) service upon the decedent’s successor was impossible because there was no existing estate or personal representative upon to whom the suggestion of death could have been served). The rule contains no restriction on who may file and serve the suggestion of death; the decedent’s lawyer may file and serve it. IdKnesal., 113 So. 3d at 538.

As The general Rule 6(b) provisions of Rule 6(b) apply to motions to substitute; accordingly, the court may extend the period for substitution if timely requested. SimilarlyLikewise, the court may allow substitution ato be made after expiration of the ninety90-day period on a showing that that the failing ure to act earlier was the resulted ofrom excusable neglect. See Knesalid. , 113 So. 3d at 539.

58 If the named plaintiff was deceased at wthen itime the original complaint was filed, then the original complaint is null and void, and the real party in interest cannot be substituted as the proper plaintiff because no a valid action was never commenced.

59

CHAPTERSECTION 5V. DEPOSITIONS AND DISCOVERY

Rule 26. General provisions governing discovery.y

(a) Discovery Methods. Parties may obtain discovery by one or more of the followingUnless the court orders otherwise under Rule 26(c) or (d), the frequency of discovery methods is unlimited. Parties may obtain discovery by one or more of the following methods: methods:

(1) dDepositions upon by oral examination or written questions; (2) Deposition by written questions; (3) wWritten interrogatories; (4) pProduction of documents or things; (5) or pPermission to enter uponto land or other property, for inspection and other purposes; and (a)(6) rRequests for admission. Unless the court orders otherwise under subdivisions (c) or (d) of this rule, the frequency of use of these methods is not limited.

(b) Scope of Discovery. Unless otherwise the court orders otherwise limited by order of the court in accordiangce witoh these rules, the scope of discovery is as follows:

(1) In General.

(A) A Ppartyies may obtain discovery regarding any nonprivileged matter:

(i) , not privileged, which is rRelevant to the issues raised by a party’s claim or defense; and (ii) Proportional to the needs of the case.

(B) Whether a nonprivileged matter is proportional to the needs of the case depends on:

(i) The importance of the issues at stake in the action; (ii) The amount in controversy; (iii) The parties’ relative access to relevant information; (iv) The parties’ resources; (v) The importance of the discovery in resolving the issues; and

60 (vi) Whether the burden or expense of the proposed discovery outweighs its likely benefit.

(C) The discovery may include: (i) The existence, description, nature, custody, condition, and location of books, documents, electronic data, magnetic data, or other tangible things; (ii) The identity and location of persons having knowledge of a discoverable matter; and (iii) The identity and location of persons who may be called as witnesses at trial.the claims or defenses of any party. The discovery may include the existence, description, nature, custody, condition and location of any books, documents, electronic or magnetic data, or other tangible things; and the identity and location of persons (i) having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial.

(1)(D) It is not ground for objection that the information sought will be inadmissible at the trial if the iInformation within this scope of discovery does not need to be admissible in evidence to be discoverable. sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Insurance Aagreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all or part of a possible judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. The Iinformation concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of Rule 26(b)(2), this paragraph, an application for insurance ishall not be treated as part of an insurance agreement.

(3) Trial Ppreparation: Mmaterials.

(A) Documents; tangible things. A party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or party’s representative (including that party’s attorney, consultant, surety, indemnitor, insurer, or agent). But Ssubject to the provisions of Rule 26subdivision (b)(4) of this rule, those materials may be discovered if:

61

(i) a party may obtain discovery of documents and tangible things oOtherwise discoverable under subdivision Rule 26(b)(1); of this rule and (ii) prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including that party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that tThe party sshowseeking discovery has substantial need of the materials in theo prepareation of that party’s case and that the party is unable without undue hardship to obtain their substantial equivalent of the materials by other means.

(3)(B) Protection against disclosure. If a courtn ordersing discovery of tsuchose materials when on the required showing has been made, ithe court musthall protect against disclosingure of the mental impressions, conclusions, opinions, or legal theories of a party’s n attorney or other representative of a party concerning the litigation.

(C) Previous statement. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, aA nonparty may request and obtain person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that persononparty. If the request is refused, the person may move for a court order, and. Rule 37(a)(4) applies to the an award of expenses incurred in relation to the motion. . For purposes of Rule 26(b)(3)(C), For purposes of this paragraph, a statement previously made is:

(i) (A) aA written statement signed or otherwise adopted or approved by the person making it; , or (B) (ii) aA contemporaneous stenographic, , mechanical, , electrical, or other recording , or other recording, or a a transcription thereofof one that recites , which is a substantially verbatim recital of the person’s an oral statement by the person making it and contemporaneously recorded.

(4) (4) Trial Ppreparations: Eexperts. A party may obtain Ddiscovery of facts known and opinions held by experts otherwise, otherwise discoverable under

62 Rule 26subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may require another one to provide the following information thrthrough interrogatories; otherwise, a party must file a motion, and subject to scope restrictions and other rules—including Rule 26(b)(4)(C) concerning appropriate fees and expenses—the court may order additional discovery as it may deem appropriate: require any other party to i (i) dentify eEach person whom the other party expects to call as an expert witness at trial; , to (ii) state tThe subject matter on which the expert is expected to testify;, and (iii) to state Tthe substance of the facts and opinions to which the expert is expected to testify; and (iv) aA summary of the grounds for each opinion. (B) (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subsection (b)(4)(C) of this rule, concerning fees and expenses, as the court may deem appropriate. Experts employed only for trial preparation. (B) A party ordinary may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) upoOn a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(D) (C) Unless manifest injustice would result: (i) , (i) tThe court mushallt require that the party seeking discovery to pay the expert a reasonable fee for time spent in responding to discovery under subsections Rule 26(b)(4)(AA)(ii) and (b)(4)(BB); of this rule, and ( (ii) The court may ii)require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred in

63 obtaining facts and opinions from the expert under Rule 26(b)(4)(A); and (iii) with respect to discovery obtained under subsection (b)(4)(A)(ii) of this rule, the court may require, and with The court must require the party seeking espect to discovery to pay the other party a fair portion of the fees and expenses reasonably incurred in obtaining facts and opinions from the expert obtained under Rsulbsection 26(b)(4)(BB).

(E) of this rule, the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (5) (5) Electronic Ddata. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request its production of electronic or magnetic data and sspecify the form in which it should be the requesting party wants it produced.

(A) The responding party must produce:

(i) All the electronic or magnetic data; (ii) tThat is responsive to the request; and (iii) That is reasonably available to the responding party in its ordinary course of business.

(B) If the responding party cannot– through reasonabley efforts–retrieve the requested data or information requested or produce it in the requested form requested, the responding party must state so in an objection complying with these rules.

(i) If the court orequideres the responding party to comply, with the request, the court it may also order that the requesting party to pay the reasonable expenses ofor any extraordinary steps required to retrieve and produce the information.

(c) (c) Discovery cConference. At any time after the commencement of the action, tThe court may hold a discovery conference aon the any time subject of discovery, and musthall do so if a party requests if requested by any partyone.

(1) Content; objection. A party’s The request for discovery conference shall must certify that counsel has conferred, or made reasonable efforts to conferdo so ,

64 with opposing counsel concerning the matters setated forth in the request, and musthall include:

2. aA statement of the issues to be tried; (A) (B) aA discovery plan and schedule of discovery; 3. Discovery 4. llimitations to be placed on discovery, if any; and (C) (D) oOther proposed discovery orders with respect to discovery.

Any objections or additions to the requested items contained in the request musthall be served and filed within no later than ten 10 days after the request is serviced of the request.

(2) Discovery order. Following the discovery conference, the court musthall enter issue an order:

(A) Statfixing the issues to be tried; e (B) Establishing a discovery plan and schedule of discovery; (C) sContainetting discovery limitations upon discovery, if any; and (D) dDectermidning such other similar matters, including the allocationg of expenses, as are necessary for the proper case management of discovery in the case.

(3) Rule 16 pretrial conference. Subject to a party’s right to move for a prompt discovery conference under Rule 26(c)(1), the court may combine the discovery conference with a Rule 16 pretrial conference.

(4) Sanctions. Unless good cause exists, if a party or attorney fails to cooperate in framing an appropriate discovery plan by agreement, the court may impose sanctions.

(5) Amendment. The court may alter or amend a Rule 26(c) order on a showing of good cause.

65 Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16. The court may impose sanctions for the failure of a party or counsel without good cause to have cooperated in the framing of an appropriate discovery plan by agreement. Upon a showing of good cause, any order entered pursuant to this subdivision may be altered or amended. (d) (d) Protective Oorders.. A party or person from whom discovery is sought may move for a protective order. The motion should be filed with the court where the action is pending or with the court that issued a deposition subpoena.

(1) For good cause show, the court may issue an order justice requires to protect the party or person from annoyance, embarrassment, oppression, undue burden, or undue expense, including one or more of the following:

(1) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending, or in the case of a deposition the court that issued a subpoena therefor, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) Forbithat the dding the discovery not be had; (B) Specifying discovery terms and conditions, including time and place; (C) Prescribing a discovery method other than the one selected by the requesting party; (D) Prohibiting inquiry into certain matters or limiting the discovery scope to certain matters; (E) Designating the persons who may be present while conducting the discovery; (F) Sealing a deposition to be opened only by court order; (G) Precluding disclosure of a trade secret or other confidential research, development, or commercial information or specifying the manner in which it is to be disclosed; (2) Requiring specified documents or information to be filed simultaneously in sealed envelopes to be opened as the court directs; (3) that the discovery may be had only on specified terms and conditions, includinga designation of the time or place; (4) that the discovery may be had only by a method of discovery other than thatselected by the party seeking discovery; (5) that certain matters not be inquired into, or that the scope of the discovery belimited to certain matters;

66 (6) that discovery be conducted with no one present except persons designated by thecourt; (7) that a deposition after being sealed to be opened only by order of the court; (8) that a trade secret or other confidential research, development, or commercialinformation not be disclosed or be disclosed only in a designated way; (H) that the parties simultaneously file specified documents or information enclosedin sealed envelopes to be opened as directed by the court;and (9) An (I) the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression, or undue burden, or undue expense, including that the requesting party provision for payment of expenses attendant upforn asuch deposition or other discovery device by the party seeking same.

(2) If it partly or wholly he motion for a protective order is denies the motion, d in whole or in part, the court—on just terms and conditions—may mayorder that the party or person provide or allow the discovery. , on such terms and conditions as are just, order that any party or person provide or permit discovery. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.

(e) Discovery Ssequence and Ttiming of Discovery. Unless the court orders otherwise on a motion for the convenience of parties and witnesses and the interests of justice, discovery Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party takes a deposition or is conducts ing other discovery, whether by deposition or otherwise, doeshall not operate to delay anyn other party’s discovery. (e) (f) Supplementationg of Rresponses. A party who has responded to a discovery request for discovery with a response that was complete when made served doies under not have a duty to supplement ithe response to with nclude information subsequthereafntlyer acquired, except as follows:

(e) (1) A party hias under a duty seasonably to supplement that party’s response a response in a timely manner with respect to any question directly addressed to:

(A) (A) the iIdentiftying and locationg of persons:

67

(i) (i) hHaving knowledge of discoverable matters;, or (ii) (ii) wWho may be called as witnesses at the trial; and

(B) , and (B) the iIdentiftying:

(i) of eEach person expert witness expected to testify be called as an expert witness at trial; , (ii) tThe subject matter on which the person is expected to testify;, and (iii) Tthe substance of the testimony.

(2) (2) A party hais under a duty to amend a prior response in a timely manner seasonably to amend a prior response iif failing to do so would be a knowing concealment and:

(A) tTheat party leobtarins information upon the basis of which (A) the party knows that the response was incorrect when madeserved;, or (B) (B) tThe party learknows that the response, though correct when made, i is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment..

(3) A party has a duty to supplement a response if imposed:

(3) (A) A duty to supplement responses may be imposed bBy court order; of the court, (B) By the parties’ agreement; of the parties, or (4)(C) By at any time prior to trial through new requests ftor supplementation of prior responses prior to trial.

[Amended effective March 3/1/, 1989; 3/March 13/, 1991; 4Apr/il 13/, 2000. Amended effective 5/ May 29/, 2003 to add Rule 26(5) addressing discovery of electronic data.]

Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 26(c) was amended to allow the court on its own motion to convene a discovery conference., 753-754 So. 2d XVII (West Miss. Cas. 2000).

68 Effective March 3/13/, 1991, Rule 26(b)(1)(ii) was amended to delete witnhesses’ oral testimony of witnesses from the listing of matter that a party might be discovered by a party. Rule 26(d) was amended to provide state that the court issuing in the case of deposition subpoena could en ter a protective orders might be made by the court that issued a subpoena therefor. 574-576 So. 2d XXIII (West Miss. Cas. 1991).

Effective March 3/1/, 1989, Rule 26(b)(1) and Rule 26(f)(1) were amended to includeprovide identifying and supplementing prior identifications of those who may be called as witnesses at trial for the identification of (and supplementation of the prior identification of) those, in addition to experts, who may be called as witnesses at the trial. 536-538 So. 2d XXIV (West Miss. Cas. 1989).

69 Rule 27. Depositions before action or pending appealto perpetuate testimony.

(a) (a) Before Aaction.

Petition. (1) Petition. A person who desiresseeking to perpetuate his own testimony or that of another person regarding about any matter that may be cognizable in any Mississippi court of this state may file a verified petition in the circuit or chancery court in the county where of the residence of any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose persons named in it to perpetuate their testimony, be titled in the petitioner’s name, and show:

(A) shall be entitled in the name of the petitioner and shall show: (1) that tThe petitioner petitioner expects to be a party to an action n cognizable action cognizable in a Mississippi court of this state but cannot at the time is presently unable to bring the action it oor cause it to be brought; (B) , (2) tThe subject matter of the expected action and the petitioner’sis interest therein it; (C) The , (3) the ffacts which the person dwants to esires to establish by the proposed testimony and the his reasons fto perpetuate r desiring toit; perpetuate it, (4) (D) Tthe names of or a description of the persons he expected s will to be adverse parties or a description of them and their addresses if so far as known; , and (5) (E) tThe names and addresses of the persons to be examinedeach deponent; and (F) and tThe substance of the testimony which the petitioner expects to elicit from each deponent.

(2) , and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (2) Notice; and sService. The petitioner shall thereafter must serve a notice upon each person named in the petition as an expected adverse party with a copy of the petition and notice stating the hearing time and place.

(A) , stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty 20 days

70 before the hearing date, of hearing the notice shall must be served in according to Rule 4the same manner for service of summons. (B) If ; but if such service cannot with due diligence an expected adverse party named in the petition cannot be served after due diligence, be made upon any expected adverse party named in the petition, the court may make such ordeorder as is just for service by publication or otherwise. (3)(C) For persons not served under Rule 4, the court mu, and shallt appoint, for persons not served in the manner provided by law, t an attorney whto shall represent them , and , in case they are not otherwise represented, shall cross--examine the deponent if a person is not otherwise represented. .

(3) Order; and Eexamination.

(A) If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, the court must:

(i) it shall make an order dDesignateing or describe ing the deponent; (ii) persons whose depositions may be taken and sSpecifying the examination subject matter; and (iii) State of the examination and whether a the depositions wshaill be taken byupon oral examination or written interrogatories.

(B) A The ddepositions may then be taken in accordiangce witoh these rules, ; and the court may issue a Rule 34 make orders of the character provided for by Rule 34.

(4)(C) For the purpose of applying these rules to a depositions for perpetuating testimony, each reference therein to the court in where ich the action is pending shall be deemed to refers to the court in whierech the petition for such deposition seeking the testimony was filed.

(5)(4) Use of Deposition use. If aA deposition to perpetuate testimony is taken under these rules, it may be used in any subsequent circuit, chancery, or county action involving the same subject matter subsequently brought in a circuit, chancery or county court in accordiangce witoh Rule 32(a).

(b) Pending Aappeal. If a n appeal has been taken from a judgment is of appealed court, or before before the taking of an appeal if ththe time to do so expires, the herefor has not expired, the court that rendered it in which the judgment was rendered may allow witness the taking of the depositions of witnesses to perpetuate their testimony for use

71 in the event of furtheradditional proceedings in the court. In such case tThe party wanting ho desires to perpetuate the testimony may make a motve ion for leave to take the deposition.

(1) Rule 27(a)(2) notice and service requirements apply in the court for leave to take the depositions, upon the same notice and service thereof as if the action were pending in the court.

(2) The motion must shall show:

(A) The names and addresses of each deponent; (B) The substance of testimony the petitioner expects to elicit from each deponent; and (C) The reasons for perpetuating their testimony.

(b)(3) (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. On If the court finding s that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it the court may may make an order allowing the depositions to be taken and issue a Rule 34 order. may make orders of the character provided for by Rule 34, and thereupon tThe depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules prescribe for depositions taken in pending actions pending in the court.

(c) Perpetuation by Aaction. This rule does not limit the power of a court to entertain (c) an action to perpetuate testimony.

72 Rule 28. Persons before whom depositions may be taken.

(a) Within the United States. Within the United States, or within a territory, or an insular possession subject to the dominion of the United States jurisdiction, a depositions musthall be initiated by an oath or affirmation administered to the deponent byinitiated b:

(1) An officer authorized to administer oaths by federal law or the law in the examination place; or (a)(2) A person the court where the action is pending appoints to administer oaths and to take testimony. y an oath or affirmation administered to the deponent by an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or by a person specially appointed by the court in which the action is pending.

(b) In a Fforeign Ccountryies.

(1) In a foreign country, a depositions may be taken:

(A) (1) oOn notice before a person authorized to administer oaths by federal law or the law of in the examination place; (B) in which the examination is held, either by the law thereof or by the law of the United States, or (2) bBefore a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commissiont to administer any necessary oath and to take testimony;, or (3) (C) According to pursuant to a letter rogatory.

(2) On a motion, notice, and just and appropriate terms, Aa commission or a letter rogatory musthall be issued on application and notice and on terms. that are just and appropriate.

(A) Showing that taking the deposition in another manner would be impracticable or inconvenient It is not not requirsited to have to the issuance of a commission or a letter rogatory issued. (B) that the taking of the deposition in any other manner is impracticable or inconvenient; and bBoth a commission and a letter rogatory may be issued in proper cases. (C) A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title.

73 (b)(D) A letter rogatory may be addressed to “ To the Appropriate Authority in (here name of the country).” Evidence obtained in response to a letter rogatory need does not need to be excluded merely for the reason that because it is not a verbatim transcript, or that because the testimony was not taken under oath, or because of for any similar departure from the requirements for depositions taken within the United States under these rules.

(c) Disqualification for Interest. A No deposition musthall not be taken before a person who is:

(1) aA party’s person who is a relative, or employee, or attorney, or counsel of any ; (2) A of the parties, or is a relative or employee of a party’s such attorney or counsel; , or (3) is fFinancially interested in the action.

74 (c) Rule 29. Stipulations regarding about discovery procedure.

Unless the court orders otherwise, the parties may stipulate in may by wwritteing:

(a) stipulation (1) provide tThat a depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions;, and

(b) To (2) mmodifying the procedures provided by in these rules for other discovery methods of discovery except, except that stipulations extending the time for Rule 33, 34, and 36 discovery responses requires provided in Rules 33, 34 and 36 for responses to discovery may be made only with the court approval of the court.

75 Rule 30. Depositions upon by oral examination.

(a) When a Ddepositions Mmay Bbe Ttaken.

(1) Without leave. After commencement of the action, aAny party may depose take the testimony of any party or person, including a party, by deposition upon oral examination without leave of court.

(2) With leave. Leave of court , granted with or without notice, must be obtained only:

(A) iIf the plaintiff seeks to take a deposition prior to the expiration of thirty30 days after a defendant is served with service of the summons unless:

(i) upon any defendant, except that leave is not required (1) if aA defendant has served a deposition notice of taking deposition or otherwise sought discovery; , or (2) (ii) if sSpecial notice is given under Rule 30subsection (b)(2) of this rule.

(B) The deposition of a person confined in prison may be taken only by leave of court on terms it orders.

(a)(3) Subpoena. The attendance of wWitness attendancees may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

(b) General and special Nnotice re of Examination: General Requirements; Special Notice;Nnon-Sstenographic reRecording; Pproduction of Ddocuments and Tthings; Ddeposition of Oorganization.

(1) Notice.

(A) A party desiring wanting to depose take the deposition of any person upon by oral examination musthall give reasonable written notice in writing to all partiesevery other party to the action. The notice shall statinge:

(i) tThe time and place fof r taking the deposition; (ii) and tThe name and address of each dpeprsonent to be examined, if known; and

76 (iii) , and, iIf the name is unot known, a general description sufficient to identify the im deponentor or the particular class or group to which the person belongs.

(B) If the deponent is served with a document subpoena duces tecum is to be served on the person to be examined, the materials designatioed n of the materials to be produced as set forth in the subpoena to be produced musthall be attached to or included in the notice or included in it.

(C) A notice may provide for the deposition taking of testimony by telephone. (1)(D) If necessary , however, to enassure athe full full right to f examination of any deponent, on a party’s motion, the court where the action is pending in which the action is pending may, on motion of any party, require that the deposition to be taken in the deponent’s presence of the deponent.

(2) Special notice.

(A) The plaintiff does not have to sLeavek leave of court is not required for the taking of a deposition by plaintiff if the notice:

(i) (A) sStates that the depersonent to be examined is about to go out of the state and will be unavailable for examination unless his deposed ition is taken before expiratiwithin the on of 30-the thirty-day period; , and (B) (ii) sSetates forth facts to supporting the statement.

(2)(B) The plaintiff’s attorney musthall sign the notice, and theis signature constitutes a certification by him that the statement and supporting facts are true to the best of theis attorney’s knowledge, information, and belief the statement and supporting facts are true.

(C) On a showing that If a party shows that when he was Rule 30(b)(2) special notice was served but that after exercising diligence, a with notice under this subsection (b)(2) he party was unable twas unable through the exercise of diligence to obtain counsel ftor representation him at the taking of the deposition, the deposition may may not be used against him.that party.

(3) For cause shown, Tthe court may for cause shown enlarge or shorten thethe time for taking the deposition for taking thedeposition.

77 (4) Nonstenographic recording. The deposition notice of deposition required under Rule 30(b)(1) of this subsection (b) may provide state thatthe testimony will be recorded by nonother than stenographic means.

(A) A deposition notice stating testimony will be recorded by nonstenographic means must , in which event the notice shall designate the manner in which the deposition will be recorded and preserved.

(B) of recording and preserving the deposition. A court may require that the deposition be taken by stenographic means if necessary to enassure that the recording be accuracyte.

(i) A party’s motion to require stenographic means by a party for such an order musthall be addressed to the court in whichwhere the action in pending. (4)(ii) ; aA motion by a witness to require fstenographic means or such an order may be addressed to the court in the district jurisdiction where the deposition is taken. (5) Production of documents and things. The nNotice to a party deponent may be accompanied by a Rule 34 request made incompliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The Rule 34 applies to procedure of Rule 34 shall apply to the request.

(6) Deposition of organization. In a deposition notice or subpoena, aA party may in his notice and in a subpoena name as the deponent as the deponent a governmental agency or a public or orprivate corporation, or a partnership, or or association or governmental agency .

(A) The notice or subpoena must and describe with reasonable particularity the matters on which examination is requested.

(B) In that event, tThe named organization musto named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf.

(i) , and may set forth, foFor each designated person, the organization may designated, the matstate the matters on which the person will testify.

78 (ii) A subpoena must hall advise a non-partynonparty organization of its duty to designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf. (iii) make such a designation. The designated persons so designated musthall testify as to matters known or reasonably available to the organization.

(6)(C) This Rule 30subsection (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

(7) For purposes of Rules 30, this Rule, and Rules 28(a), 37(a)(1), 37(b)(1), and 45(b), a deposition shall must be deemed considered to be taken occur in the county where the deponent is physically present to answer questions propounded to him.

(c) Examination and Ccross--Eexamination; examination Rrecord of Examination; Oobjections.

(1) Examination; cross-examination. Witness Eexamination and cross-- examination of witnesses may proceed as permitted allowed at the trial.

(2) Examination record. Witness The testimony must of the witness shall be stenographically recorded either stenographically or as stated provided Rule 30(b)(4). in subsection (b)(4) of this rule. If requested by a one of the party, ies, the testimony musthall be transcribed upon the payment of the reasonable charges therefor.

(3) Objections. (A) All oObjections made at the time of the examination to to the following must be noted on the record:

(i) the qQualifications of the person taking the deposition; (ii) , or to tThe manner in which it is taken; (iii) of taking it, or to the eEvidence presented at it; (iv) presented, or to theA party’s conduct; of any party, and (v) any oOther objections to the proceedings must, shall be noted upon the recordtranscription or recording.

(B) But the examination still proceeds, and Eevidence objected to musthall be taken subject to the objections.

79

(c)(4) Participation by written question. Instead lieu oof participating in the oral examination, parties a party may serve written questions on the party taking the deposition. The party taking the deposition must , who shall propound them to the witness and See see that the the answers thereto are recorded verbatim.

(d) Motion to Tterminate or Llimit Eexamination.

(1) At any time dDuring the taking of the deposition, on a party or deponent may move to terminate or limit the examination.

(A) On a showing motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such an unreasonable manner as unreasonably to annoy, embarrass, or oppress the deponent/party, or party, the court in whicwhere the the action is pending may order the officer conducting the examination to cease doing so. (B) The court may also forthwith from taking the deposition or may limit the deposition scope and manner of the taking of the deposition as providundedr in Rule 26(d). (C) If the order made terminates the examination, it mayshall be resumed thereafter only upon an on the order by of the court in which where the action is pending.

(d)(2) If demanded by the objecting party or deponent, Upon demand of the objecting party or deponent, the taking of the deposition musthall be suspended for the time necessary to move ake a motion for an order. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.

(e) Submission to Wwitness; Cchanges; Ssigning. When the testimony is taken by stenographic means, or is recorded by nonother than stenographic means under Rule 30as provided in subsection (b)(4) of this rule, and if the transcription or recording thereof is to be used at any proceeding in the action, such the transcription or or recording musthall be submitted to the witness for examination, unless otsucherwise waived by the witness and the parties examination is waived by the witness and by the parties. (1) Any chChanges in form or substance which the witness wantdesires to make musthall be entered upon the transcription or stated in a writing to accompanying the recording, together with a statement of the witness’ reasons given by the witness for making them.

80 (2) The party taking the deposition must promptly serve all parties with Nnotice of sucthe changes and reasons for them. (3) shall promptly be served upon all parties by the party taking the deposition. The transcription or recording musthall then be affirmed in writing as correct by the witness, unless the parties by stipulate to ion waiveing the affirmation. (4) If the witness does not affirm that the transcription or recording is not affirmed as correct by the witness within thirty 30 days of its submission to him, the reasons for the refusal musthall be stated under penalty of perjury on the transcription or in an accompanying writing to accompany the recording by the party desiring wanting to use sucth transcription or recording. (e)(5) The transcription or recording may then be used fully as though affirmed in writing by the witness, unless on a motion to suppress under Rule 32(d)(4), the court holds that the reasons given for the refusingal to affirmation require the deposition to be partly or wholly rejectedion of the deposition in whole or in part.

(f) Certification; Eexhibits; Ccopies; Nnotice of Ffiling.

(1) Certification. When a deposition is stenographically taken, the stenographic reporterstenographer must hallcertify, under penalty of perjury, on the transcript that the witness was sworn in the stenographer’sis presence and that the transcript is a true record of the witness’ the testimony given by the witness.

(A) When a deposition is recorded by nonther than stenographic means as provided iunder R sublsection 30(b)(4) of this Rule, and thereafter transcribed, the person transcribering it musthall certify, under penalty of perjury, on the transcript:

(i) that The person heard that the witness was sworn on the recording; and (ii) that tThe transcript is a correct writing of the recording.

(1)(B) A deposition so certified according to this rule musthall be considered prima facie evidence of the witness’ testimony of the witness.

(2) Exhibits. On a party’s request, Ddocuments and things produced for inspection during witnhess examination of thewitness, musthall, upon the request of a party, be marked for identification and annexed to the deposition. A party may inspect and copy them.

81 (A) , and may be inspected and copied by any party. Whenever the person producing materials desires wants to retain the originals, the person may substitute copies for the originals of the originals, or afford each party an opportunity to copy make copies tthereofm. (i) In the event the person producing them retains original materials are retained by the person producing them, they musthall be marked for identification, and the person producing them shall must afford each party the subsequent opportunity to compare any copy with the original. (ii) THhe party musthall also be required to retain the original materials for subsequent use in any proceeding in the same action. (2)(iii) Any party may move for an order that the originals be annexed to and returned with the deposition to the court until, pending final disposition of the case.

(3) Copies. UpOon payment of reasonable charges therefor, the stenographeric reporter, or party taking the deposition uinder thecase of a deposition taken pursuant Ruleto subsection 30(b)(4) of this rule, the party taking the deposition musthall furnish a copy of the deposition of the deposition to any party or to the deponent.

(4) Notice of filing. If all or part of the deposition is partly or wholly filed with the court, the party making the filingdoing so must hall give prompt notice thereof to all other parties.

(g) (g) Failure to Aattend or to Sserve Ssubpoena; Eexpenses.

(1) A party failing to attend and proceed with a deposition the party noticed may be ordered to pay reasonable expenses, including reasonable attorney’s fees, to another party if that party/party’s attorney attends the deposition in person according to the notice. If the party giving the notice of the taking of a deposition fails to attend andproceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. (2) If a witness does not attend a deposition noticed by a party because the party failed to serve a subpoena on the witness, the party who noticed the deposition may be ordered to pay reasonable expenses, including reasonable attorney’s fees, to another party if that party/party’s attorney attends the deposition with the expectation the witness will be deposed. If the party giving the notice of the

82 taking of a deposition of a witness fails to servea subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.

(h) (h) Expenses Ggenerally Nnot Ttreated as Ccourt Ccosts. No part of the deposition expenses of taking depositions, other than the serving of subpoenas , must hall be adjudgedawarded, assessed, or taxed as court costs.

[Amended effective March 3/1, 19/89; 7/July 1/, 1997.]

Advisory Committee Historical Note

Effective July 7/1/, 1997, Rule 30(b)(7) was amended to correct the reference to Rule 45. 689-692 So. 2d XLIX (West Miss. Cas. 1997).

Effective March 3/1/, 1989, Rule 30 was amended to abrogate the requirement that the party taking a deposition out of state pay certain expenses of the other party incident thereto. 536-538 So. 2d XXV (West Miss. Cas. 1989).

[Amended effective July 7/1/, 1997.]

83 Rule 31. Depositions upon by written questions.

(a) (a) Serving Qquestions; Nnotice. After commencement of the action, any party may take depose the testimony of any person or , including a party , by deposition upon written questions. The Witness attendance of witnesses may be compelled by the use of subpoena as provided according to by law. The deposition of a person confined in prison may be taken only by leave of court on such terms ias the court prescribes.

(1) A party desiring wanting to take a deposition upon by written questions musthall serve all parties with the questions m upon every other party with and a notice stating:

(A) The name and address of the deponent if known; (B) If the name is unknown, a general description sufficient to identify the deponent or the particular class or group to which the person belongs; and (C) (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) tThe address and name or descriptive title and address of the officer before whom the deposition is to bwill be taken.

(2) The A ddeposition of a public or private corporation, partnership, association, or governmental agency may be taken by upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordiangce witoh Rule 30(b)(6).

(3) Within thirty 30 days after the notice and written questions are served, a party may serve cross- questions on all parties. upon all other parties.

(4) Within ten 10 days after being served with cross- questions, a party may serve redirect questions upon all other parties.

(5) Within ten 10 days after being served with redirect questions, a party may serve re-cross questions upon all other parties.

(6) For cause shown, Tthe court may for cause shown enlarge or shorten the time.

(b) (b) Officer to Ttake Rresponses and Pprepare Rrecord.

84 (1) The deposing party must deliver Aa copy of the notice and served copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice. (2) As stated in Rule 30(c), (e), and (f), the designated officer must promptly , who shall pproceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the witness’ testimony in response to the questions and to prepare, certify, and file or mail or mail the deposition with , attaching, thereto the copy of the notice and the questions received by the officerim.

85

Rule 32. Use of dDepositions use in court proceedings.

(a) (a) Use of Depositions use. If a party was present or represented at a deposition or had reasonable notice of one, At the trial or upon the hearingall or part of the deposition m of a motion of an interlocutory proceeding, any be used against that party to the extent part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordaingce with to any of the following provisions:

(1) A party may use any deposition may be used by any party for the purpose of contradicting or impeaching the deponent’s testimony of deponent as a witness, or for any other purpose permitted allowed by the Mississippi Rules of Evidence.

(2) An adverse party may use the following for any purpose:

(A) A party’s The deposition; or (B) Anyone’s deposition if when taken, the person:

(2)(i) Was an officer, director, managing agent, or person designated of a party or of anyone who at the time of taking the deposition wasan officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party who is a governmental agency or a public or or private corporation, partnership, or or association or governmental agency which is a party, may be used by an adverse party for any purpose.

(3) A party may use the deposition of a party or nonparty witnessThe deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(A) (A) tThat the witness is dead; or (B) (B) tThat the witness is at a greater distance greater than one hundred100 miles from the trial or hearing location; (C) That the witness place of trial or hearing, or is out is out of the state, unless it appears that the party offering the deposition procured the witness’ absence;

86 (D) of the witness was procured by the party offering the deposition; or (C) tThat the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) (E) tThat the party offering the deposition has been unable to procure the witness’ attendance of the witness by subpoena; or (E) t (F) That the witness is a medical doctor; or (F) (3)(G) upoOn application a motion and with notice, that the deposition should be used due to such exceptional circumstances, exist as to make it desirable, in the interest of justice, and with due regard to the importance of presenting the witness testimony of witnesses orally in open court, to allow the deposition to be so used.

(4) If a party offers only part of a deposition is offered in evidence by a party, an adverse party may require the party im tto introduce any other part which ought in fairness ought to be considered with the introduced part. A party may also introduced, and any party may introduce any other parts.

(5) Substitution of parties does not affect the right to use depositions previously taken.

(6) ; and, wWhen an action in any court has been dismissed, and another action involving the same subject matter is afterward subsequently brought between the same parties, or their representatives, or their successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter one as if originally taken therefor it.

(7) A deposition previously taken may also be used as permitted by the Mississippi Rules of Evidence allow..

(b) Objections to Aadmissibility. Subject to the provisions of Rule 28(b) and subse32ction (d)(3) of this rule, a party may objection may be made at the a trial or hearing to receiving ve in evidence a ny deposition or part thereof one for any reason which would requiring evidence to be e the excluded sion of the evidence if the witness were then present and testifying.

[Amended effective October 10/21/, 1999.]

(c) [Abrogated].

(d) Effect of deposition Eerrors and Iirregularityies in Depositions.

87

(1) As to Notice. All errors and irregularities in the noticing e for taking a deposition are waived unless written objection is promptly served upon the party noticing a depositiongiving the notice.

(2) Officer As to Ddisqualification of Officer. Objections Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is are waived unless madeasserted:

(A) bBefore the taking of the deposition begins; or (2)(B) If afterwards, as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(3) As to Taking of of Ddeposition.

(A) An Oobjections to the competency of a witness or to the competency, relevancy, or materiality of testimony are is not waived by failure failing to make them it before or during the taking of the deposition, unless the grounds fofr the objection is one which might have been obviated or removed if presented at that time.

(A) The following (B) Eerrors and irregularities occurring at the oral examination are waived unless objection is timely asserted at the deposition:

(i) in tThe manner in which the deposition is taken; (ii) oftaking the deposition, in tThe form of the questions or answers; (iii) , in tThe oath or affirmation; , (iv) or in tThe parties’ conduct; and (B)(v) of the parties, and eErrors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereof is made at the taking of the deposition.

(C) An Oobjection s to the form of written questions submitted under Rule 31 areis waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions

88 and within five days after service of the last authorized questions authorized.

(4) Deposition As to Ccompletion and Rreturn of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition isor in which the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof it is made filed with reasonable promptness after such the defect is, or with due diligence might have been, ascertained.

[Amended effective January 1/10/, 1986; 3March/ 1/, 1989.]

Advisory Committee Historical Note

Effective March 3/1/, 1989, Rule 32 was amended by providing that the deposition of a medical doctor may be used by any party for any purpose. 536-538 So. 2d XXV (West Miss. Cas. 1989).

Effective January 1/10/, 1986, Rule 32 was amended by deleting references to the Mississippi Rules of Evidence; and Rule 32(c) [Effect of Taking or Using Depositions] was abrogated. 478-481 So. 2d XXIII (West Miss. Cas. 1986).

Advisory Committee Notes

Miss. R. Evid. M.R.E. 801(d)(1)(A) defines a prior inconsistent statement given under oath as nonhearsay and . M.R.E. 801(d)(1)(A) applies when a witness testifies at trial in a manner that is inconsistent with a previous sworn statement. The previous sworn statement, which may have been made during a deposition, is non-hearsay , and is admissible at trial, assumingunless barred by a no other evidentiary rule bars its introduction. See Craft v. State, 656 So. 2d 1156, 1164 (Miss. 1995).

Miss. R. Evid. 804(b)(1) permits allows an unavailable witness’ deposition testimony to be introduced. the introduction of deposition testimony by a witness who is unavailable at trial. Though the deposition could have been taken in the same proceeding where it is offered or a different one. But of the unavailable witness need not have been taken in the same proceeding as that in which it is offered, the party against whom the deposition

89 testimony is being offered , must have had an opportunity and similar motive to develop the testimony. See Naylor v. State, 759 So. 2d 406, 410-11 (Miss. 2000).

If a deposition is offered into evidence at trial, the offering party’s attorney is responsible for providing the court with a written transcript. of the deposition. In addition, if deposition aan audio or video recording of the deposition is played is played for the jury at trial, the offering party must also provide the court with a true and correct copy of such the audio or video recording. If the entire deposition is not admitted into evidence, the both parties’ attorneys for both parties should ensure that the court reporter receives is given an accurate record indicating the specific deposition portions of the deposition that are introduced into evidence at trial. Such The record should refer to the page and line numbers of the written deposition transcript of the deposition. In addition, Tthe attorneys for both parties also should ensure that the court reporter complies with the Guidelines for Court Reporters in the Mississippi Rules of Appellate Procedure. See Miss. R. App. P. app. 3 (regarding M.R.A.P. Appendix III, governing the manner in which trial transcripts must are to be prepared and filed).

Rule 32(a) is not inconsistent consistent with Miss. .R. Evid. 804(a) because Rule 32(a) authorizes the use of certain witness depositions at trial for any purpose even though not all such witnesses are defined as “unavailable witnesses” pursuant according to Rule to M.R.E. 804(a). Pursuant Under Miss. R. Evid.to M.R.E. 804(b), a witness’ former testimony of a witness is not excluded as hearsay if the witness is unavailable. Under Miss. R. Evid. M.R.E. 1103, provides that any court rule that is inconsistent with the Mississippi Rules of Evidence is repealed. In gGenerally, deposition testimony may be excluded if the witness is not “unavailable” pursuant under to Miss. R. Evid. 804(a). See, , e.g.., Parmenter v. J & B EnterprisesEnters., Inc., 99 So. 3d 207, 219 (Miss. Ct. App. 2012) (court affirminged trial court’s exclusion of clinical psychologist’s deposition testimony by the plaintiff’s clinical psychologist because plaintiff failed to demonstrate the witness was unavailable as required by Miss. R. Evid. 804(b)(1)).

90 Rule 33. Interrogatories to parties.

(a) Availability; Procedures for Use. As a matter of right, a ny party may serve up to 30 written interrogatories on another party. The party to whom interrogatories are directed must answer them. If that party as a matter of right upon any other party written interrogatories not to exceed thirty in number to be answered by the party served or, if the party served is a governmental agency or public or or private corporation, or a partnership, or or association, or governmental agency, by an y officer or agent must answer the interrogatories and provide , who shall furnish such information as is available to the party.

(1) Each interrogatory shall must consist of a single question. (2) Interrogatories may, without leave of court, be served:

(A) uOpon the plaintiff after the action is commenced; ment of the action and (B) upOon the defendantany other party withwhen or after service of the summons and complaint are served or afterwards upon that party.

(a)(3) Serving more Leave of courtthan 30 interrogatories requires leave of court to be granted on a showing of necessity., to be granted upon a showing of necessity, shall be required to serve in excess of thirty interrogatories.

(b) Answers; and oObjections; time.

(1) Answers. To the extent not objected to, eEach interrogatory musthall be answered separately; and fully; in writing; and under oath.

(2) Signed. Interrogatory answers must be signed by the person making them. Objections to interrogatories must be signed by the attorney making them. ,unless

(3) Objections. If a party objects to an interrogatory, the it is objected to, in which event the objecting party musthall state the all reasons for the an objection and answer to the extent the interrogatory is not objectionable.

(A) All grounds for an objection must be stated with specificity. (B) A basis not stated in a timely objection is waived unless the court excuses the failure for good cause shown. (C) If otherwise proper, an interrogatory is not necessarily objectionable merely because an answering it involves an opinion; a contention that

91 relates to fact; or the application of law to fact. But the court may order that a party does not have to answer it until after designated discovery has been completed, a pretrial conference, or other later time.

(4) Time. The responding party must serve answers and objections within 30 days of the date the interrogatories were served. But a defendant may serve them within 45 days after the summons and complaint are served on that defendant.

(5) Sanctions. A party may move for a Rule 37(a) order based on an objection or other failure to answer an interrogatory.

(3) n and shall answer to the extent the interrogatory is not objectionable. (4) The answers are to be signed by the person making them, and the objectionssigned by the attorney making them. (5) The party upon whom the interrogatories have been served shall serve a copy ofthe answers, and objections if any, within thirty days after the service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. (6) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown. (7) The party submitting the interrogatories may move for an order under Rule 37 (a) with respect to any objection to or other failure to answer an interrogatory. (c) Scope; uUse at tTrial.

(1) Scope. An iInterrogatoryies may relate to any matters which that ccan be inquired into under Rule 26(b). (2) Use. An interrogatory, and the answer s may be used to the extent allowed by the Mississippi Rules of Evidence. permitted by the rules of evidence.

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time. (d) Option to pProduce bBusiness rRecords. If Rule 33(d)(1) and (d)(2) apply, then a party may answer an interrogatory as stated in Rule 33(d)(3) and (d)(4).

92 (1) If an Where interrogatory the answer to an interrogatory may be derived or ascertained from the following:

(A) from the The responding party’s business records (including electronically stored information) of the party upon whom the interrogatory has been served ; (B) or from an examinationExamining, auditing, or inspecting themon of suc; h business records, or (C) from Aa compilation, abstract, or summary based thereon them;, and

(2) And if ththe burden of deriving or ascertaining the answer is substantially the same for the either party;

(3) Then the responding party may answer by:

(A) y serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to Sspecifying the records from which the answer may be derived or ascertained; and (B) and to Aaffording to the other party serving the interrogatory reasonable opportunity to:

(i) E examine, audit, or inspect such the records; and (ii) to makeMake copies, compilations, abstracts, or summaries.

(j)(4) The responding party must also specificspecify the records from which the answer may be derived or ascertainedation with provided shall include sufficient detail to permit allow the interrogating other party to identify readily readily the individual documents from which the answer may be ascertained.

[Amended effective April 4/13/13, 2000.]

Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 33 was amended to require parties to produce all non- objectionable information and to clearly state the ground for objection to each interrogatory. 753-754 So. 2d XVII (West Miss. Cas. 2000).

93 Advisory Committee Notes

The thirty 30 interrogatories permitted allowed as a matter of right are to be computed by counting each distinct question as one of the thirty30, even if labeled a sub-part, subsection, threshold question, or similar designationthe like. Greater lenience for construing several questions as one interrogatory may be appropriate regarding Iinquiries about witness names or locations; the existence, location, and custodians of documents or physical evidence; and similar areas capable of being explored with well suited to non- abusive exploration by interrogatoriesy, such as inquiries into the names and locations of witnesses, or the existence, location, and custodians of documents or physical evidence, greater leniency may be appropriate in construing several questions as one interrogatory.

Rule 33(b)(4) requires that the grounds for any objection be stated with specificity. “‘General objections’ applicable to each and every interrogatory . . . …are clearly outside the bounds of this rule.” See Ford Motor Co. v. Tennin, 960 So. 2d 379 (Miss. 2007). If an interrogatory is only partially objectionable, the responding party musthall clearly indicate the extent to which the interrogatory is objectionable and the basis for the partial objection. The responding party must also fully respond to the extent the interrogatory is not objectionable. If, fFor example, if an interrogatory seeking information about 30 facilities is deemed objectionable , butwhile an interrogatory seeking information about 10 facilities is not, would not have been objectionable, the interrogatory should be answered with respect to the 10 facilities; , and the grounds for the objectiong to providing the information with aboutrespect to the remaining facilities should be stated specificallywith specificity.

94 Rule 34. Productiong of documents and things; eand entreringy upon land for inspectiong and other purposes.

(a) Scope. Any party may serve on any other party a request within the scope of Rule 26(b):

(1) (1) tTo produce and permit allow the requesting party making the request, or the party’s representative someone acting on his behalf, to inspect and copy , any designated documents or electronically stored information in any medium and from which the respondent can obtain information directly or translate it into a reasonably useable form if necessary, (including writings, drawings, graphs, charts, photographs, phono-records, data, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably useable form);, or (2) tTo inspect, and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the responding party’s possession, custody, or control of the party upon whom the request is served; or (2) (a)(3) tTo permit allow entry uponto designated land or other property in the responding party’s possession or control of the party upon whom the request is served ffor the purpose of inspectiong and , measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26 (b).

(b) Procedure.

(1) Time. Without leave of court, Ththe request may, without leave of court, be served upon the plaintiff after the action is commencemd ent of the action and upon any other party when ith or after serving that party with ce of the summons and complaint upor n thaftert partywards.

(2) Content. The request:

(A) The request sMust shall setate either by individual item or category what is forth the items to be inspected; (B) Must either by individual item or by category, and ddescribe each item and category with reasonable particularity; (C) Must . The request shall sspecify a reasonable time, place, and manner of for making the inspectiong and performing the related acts; and

95 (D) May specify the form or forms in which electronically stored information is to be produced.

(b)(3) Response..

(A) Time. The responding party must serve a written answer within 30 days of the date the request was served. But a defendant may serve a written answer within 45 days after the summons and complaint are served on that defendant.

(i) The party upon whom the request is served shall serve a written response within thirty days after the service of the request, except that a defendant may serve a response within forty-five days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. (B) Responding to each item. For each item or category, Ththe response must hall state, with respect to each item or category , tthat inspection and related activities will be permitted allowed as requested or state , unless the request is an objected to, ion and the which event the reasons for objecit with specificityion shall be stated.

(i) The responding party may state that copies of documents or electronically stored information will be produced instead of allowing inspection. (ii) Under Rule 34(2)(b)(2)(B)(i), the production must be completed no later than the time specified in the request or another reasonable time specified in the response.

(C) Producing documents, electronically stored information. The responding party must produce documents as kept in the usual course of business or organize and label them to correspond with categories in the request.

(i) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (ii) A party does not need to produce the same electronically stored information in more than one form.

96 (4) Objection.

(A) An objection must state whether responsive materials are being withheld on the basis of that objection.

(B) A partial objection must specify the objectionable part of the request and allow the remainder to be inspected.

(C) A party may object to If objection is made to part of an item or category, the part shall be specified. The response may state an objection to a the requested form fofr produciproducing ng electronically stored information.

(i) If the responding party objects to thea requested form - or the request did not specify oneif no form was specified, in the request - the responding party must state the what form or forms the party it intendss to be use.

(D) Pursuant to Rule 26(b)(5), aA responding party may also object under Rule 26(b)(5) to productiong of electronically stored information that is not reasonably accessible because of undue burden or cost.

(E) The party submitting the request may move for a n order under Rule 37(a) order regarding:

(i) Awith respect to any objection; (ii) F to or other failure to respond to the request; (iii) Failure to respond to or any part thereof one; or (iv) , or any fFailure to permit allow inspection as requested.

(c) Nonparty. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter onto land.

The request may specify the form or forms in which electronically stored information is to be produced. When producing documents, the producing party shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request that call for their production. If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a

97 reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form.

(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. [Amended effective July 7/1/, 2013, to address production of electronically stored information.]

Advisory Committee Historical Note

Effective July 7/1, 20/13, Miss. R. Civ. P. 34 was amended to specifically authorize a party to request any other party to produce electronically stored information. The amendment established the procedure for requesting production of electronically stored information and the procedure for objecting to that type of such a request.

98 Rule 35. Physical and mental examination of persons.

(a) Order. If a party’s mental or physical condition (including blood group) is in controversy, the court where the action is pending may order the party to submit to physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person over whom the party has custody or legal control.

(1) The court may issue the order only on:

(A) A motion for good cause shown; and

(B) Notice to the person to be examined and to all parties specifying:

(i) The time, place, manner, conditions, and scope of the examination; and (ii) The person or persons who will perform it.

(2) A party or person may not be required to travel an unreasonable distance for an examination.

(3) The requesting party must pay the examiner and advance all necessary expenses to be incurred by the party or person complying with the order.

(b) Examiner’s report.

(1) If requested by the party against whom the court issue a Rule 35(a) order or the person examined, the party who moved for the examination must deliver a copy of the examiner’s detailed written report stating:

(A) The examiner’s findings; (B) All test results, diagnoses, and conclusions; and (C) All reports of earlier examinations of the same condition.

(2) After delivering the reports and on request, the party who moved for the examination is entitled to receive from the party against whom the order was issued like reports of all prior or subsequent examinations of the same condition. But a party with custody or legal control of the person examined is not required to do so on a showing that the party is unable to obtain the reports.

99 (3) On a motion, the court may require a party to deliver a report on just terms. If an examiner fails or refuses to do so, the court may exclude the examiner’s testimony if offered at trial.

(4) By requesting and obtaining a report of the court-ordered examination or by deposing the examiner, the examined party waives privilege in that action and others involving the same controversy as to the testimony of every other person who has examined the party or subsequently may do so regarding the same mental or physical condition.

(5) Rule 35(b) applies to examinations made by the parties’ agreement unless their agreement expressly states otherwise. But it does not preclude discovery of an examiner’s report or deposing the examiner according to the provisions of another rule.

(c) Limited applicability to Title 93 of the Mississippi Code of 1972 Annotated. This rule does not apply to actions under Miss. Code Ann. §§ 93-1-1 to 93-29-23. But the chancery court has discretion to decide the rule does apply.

Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. A party or person may not be required to travel an unreasonable distance for an examination. The party requesting the examination shall pay the examiner and shall advance all necessary expenses to be incurred by the party or person in complying with the order. (a) Report of Examiner. (0) If requested by the party against whom an order is made under Rule 35(a) or theperson examined, the party causing the examination to be made shall deliver to the requesting party a copy of the detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition unless, in the case of a report of examination of a person not a party, the party

100 shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner’s testimony if offered at trial. By requesting and obtaining a report of the examination so ordered or by takingthe deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (1) This subdivision applies to examinations made by agreement of the parties, unlessthe agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule. (c) Limited Applicability to Actions Under Title 93 of the Mississippi Code of 1972. This rule does not apply to actions under Title 93 of the Mississippi Code of 1972, except in the discretion of the Chancery Judge. [Adopted effective January 1/16/, 2003. ]

Advisory Committee Historical Note

Effective January 1/16/, 2003, Rule 35 was adopted to allow a court to order a physical or mental examination of a person for good cause on motion. So. 2d (West Miss. Cases ).

101 Rule 36. Requests for admission.

(a) Request for AdmissionScope; procedure.

(1) Scope. For purposes of the pending action only, Aa party may serve upon another y onther with party a written request for the to admit ssion, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) relating to:

(A) set forth in the request that relate to Sstatements or opinions of fact; or (B) or ofStatements or opinions on the application of law to fact, including the genuineness of any documents described in the request.

(2) Procedure.

(A) Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Time. The request may, without leave of court, be served on the plaintiff after the action is commenced and on another party when serving that party with the summons and complaint or afterwards.

(B) Form; copy of documents.

(i) Each matter must be separately stated. (ii) A request to admit the genuineness of a document must be accompanied by a copy of the document unless produced or otherwise made available for inspection and copying.

(3) Response.

Effect of not responding; time. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons upon that party. (A) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty 30 days after the request is served service of the request, or within a such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the requesting party with requesting the admission a written answer or objection or objection aaddressed to the matter and , ssigned by the party or party’s or by his attorney.

102

(i) But a defendant may serve answers or objections within 45 days after the summons and complaint are served on that defendant , but, unless the court shortens the time.

(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. (A) Responding to substance of the request. A denial must fairly respond to the substance of the requested admission.

(B) Qualification; partial denial; specificity. When good faith requires a party to qualify an answer or partially deny a matter, the party must specify the admitted part and qualify or deny the remainder.

(C) Lack of information or knowledge. An answering party may assert lack of information or knowledge as a reason for failing to admit or deny a request only if the party states:

(i) That the party has made reasonable inquiry; and (ii) That information known or readily obtainable by the party is insufficient to enable the party to do so.

(5) Objection. , a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him. If a party objects to a request, the reasons for doing so must be stated.

(A) Trial issue. If the responding party considers a matter in a requested admission to present a genuine issue for trial, the party may not object solely on that basis.

(i) Subject to Rule 37(c), the party may deny the matter or state reasons why it cannot be admitted or denied.

(6) Motion for sufficiency.

ion is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he

103 shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it. (A) The requesting party who has requested the admissions may move to determine decide the sufficiency of the an answers or objections. (B) Unless the court determines decides that an objection is justified, it musthall order the responding party to serve at an answer be served. (C) If the court dectermidnes that an answer does not comply with Rule 36 the requirements of this section, it may:

(i) oOrder either that the matter is admitted; (ii) orRequire that an amended answer to be served; or (iii) . The court may, in lieu of these orders, dDefter its mine that final decision until isposition of the request be made at a pre-trial conference or at a designated time before trialtime prior to trial.

(D) Rule 37(a)(4) applies to an the award of expenses incurred in relation to the motion.

Effect of Admissionadmission; withdrawing; amending. Any matter admitted under this rule is conclusively (7) established unless on a motion, the court on motion permitsallows the admission to be withdrawaln or amendmednt of the admission.

(A) A party’s admission under this rule is for the purpose of the pending action only. It is not an admission for another purpose and may not be used against that party in another proceeding.

(B) Withdrawal; amendment. The court may allow an admission to be withdrawn or amended:

(i) Subject to Rule 16(e)the provisions governing amendment of a final pre-trial order;

104 (ii) , the court may permit withdrawal or amendment wWhen the presentationg of the an action’s merits of the action will be subserved; thereby and (iii) tThe party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party him in maintaining that party’s his action or defense on the merits.

Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding. Advisory Committee Notes

The purpose of Rule 36 is to identify and establish undisputed facts that are not in dispute. DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002). “[T]he requests must be reasonable and must be unambiguous. A request is ambiguous if the request is subject to more than one reasonable interpretation. The purpose of requests for admissions is to narrow and define issues for trial.” See Haley v. Harbin, 933 So. 2d 261, 262-63 (Miss. 2005). “Requests for admissions ‘should not be of such . . . great number and broad scope as to cover all the issues [even] of a complex case, and [o]bviously . . . …should not be sought in an attempt to harass an opposing party.’” See Id. Haley, 933 So. 2d at 263.

Rule 36 will be enforced according to its terms; a matters admitted or deemed admitted upon the responding party’s failure to timely respond answer are is conclusively established unless the court exercises , within its discretion to , grants a motion to amend or withdraw the admission. “Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” DeBlanc, 814 So. 2d at 801 (citing 7 James Wm. Moore, et al., Moore’s Federal Practice ¶ 36.03[2], at 36, at 36 (3d ed. 2001)). But in a matter involving However, in the matter of child custody, the trial court may allow an admitted issue to be withdrawn , as justice requires, allow the withdrawal of the issue admitted. Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005).

The rule sets out a two-pronged test that trial courts may use when determining whether to grant a motion to withdraw or amend an admission. Courts may consider whether “presentation of the merits . . . …will be subserved [by amendment or withdrawal] and whether the party who obtained the admission has satisfied the court that withdrawal or amendment would prejudice him or her . . . . …. [A] trial court ‘may,’ but is not required to, consider the two-pronged test in denying a motion to withdraw or amend.” See Young v. Smith, 67 So. 3d 732, 740 (Miss. 2011).

105 Because Generally, aa party generally lacks has no knowledge concerning of the authenticity or admissibility of the an opponent’s sing party’s medical records. a party does n and, therefore, has not have an obligation to admit the authenticity or admissibility of such an opposing party’s medical recordsdocuments absent: (1) proper authentication of such records in accordiangce witoh Miss. R. Evid. 901 or 902; and (2) proper demonstration that such records they are records of regularly conducted activity pursuandert to Miss. R. Evid. 803(6). See Rhoda v. Weathers, 87 So. 3d 1036 (Miss. 2012).

106 Rule 37. Failing ure to make or cooperate in discovery: sanctions.

(a) (a) Motion for Oorder Ccompelling Ddiscovery. A party, upoOn reasonable notice to other parties and all affected persons affected thereby, a party may apply move for an order compelling discovery according to th ais rulfollowse:.

(1) Appropriate Ccourt. A motion n application for an order compelling discovery may be fmadiled with to the court in where ich the action is pending. (1) (2) Specific Mmotions.

(A) A party seeking discovery may move for an order compelling an answer, designation, production, or inspection if:

(i) If aA deponent fails to answer a question propounded or submitted under Rules 30 or 31;, (ii) or aA corporation or other entity fails to make a designation under Rules 30(b)(6) or 31(a); (iii) , or aA party fails to answer an interrogatory submitted under Rule 33; or (iv) , or if a A party fails to produce documents, fails to respond that inspection will be allowed, or fails to allow inspection as , in response to a requested for inspection submitted under Rule 34., fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request.

(B) When taking a deposition byon oral examination, the proponent of the question may complete or adjourn the examination before he appliesmoving for an order. (2) (C) If the court partly or wholly denies the motion in whole or in part, it may issue a Rule 26(d) make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(d).

(3) Evasive or Iincomplete Aanswer. For purposes of Rule 37(a)this section, an evasive or incomplete answer imust to be treated as a failure to answer. (3) (4) Award of Eexpenses of Motion.

107

(A) If the motion is granted, after an opportunity to the court shall, after opportunity for be hearding, the court must require the party or or deponent whose conduct necessitated the motion; or the party or or attorney who adviseding sucthe conduct; or both of them to pay to the moving party the reasonable expenses, including attorney’s fees, incurred toin obtaining the order unless the court finds: , (i) including attorney’s fees, unless the court finds That that the opposition to the motion was substantially justified; or (ii) tThat other circumstances make an expense award of expenses unjust. (4) (B) If the motion is denied, after an opportunity to be heard, the court musthall, after opportunity for hearing, require the moving party; the moving party’s of the attorney advising the motion; or both of them to pay to the opposing party or deponent who opposed the motion the reasonable expenses, including attorney’s fees, incurred to in opposeing the motion, including attorney’s fees, unless the court finds:

(i) tThat the making of the motion was substantially justified; or (ii) tThat other circumstances make an expense award of expense unjust.

(C) If the motion is partly granted in part and denied in part, the court may apportion the reasonable expenses incurred in obtaining and opposing relation to the motion among the parties and persons in a just manner.

(b) (b) Failing ure to Ccomply Wwith Oorder.

(1) Court sanctions.Sanctions by Court. If a deponent refuses a deponent fails to be sworn or to answer a question after the court has directed otherwise, afterbeing directed to do so by the court, the failure may be considered a contempt of court. (1) (2) Sanctions by court where Sanctions by Court in Which action is pending. Action Is Pending. If a party or or a party’sn officer, director, or managing agent, of a party or other a person designated to testify under Rules 30(b)(6) or 31(a) to testify in behalf of a party fails to obey an order to provide or permit allow discovery, including a Rule 37n order made under subsection (a) of this rduler, the court in wherich e the action is pending may imakssue additional just

108 such orders in regard to the failure as are just, and among others the followincluding: (2) (A) Establishing matters an order that the matters pertaining to the regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordaingce witoh the requesting party’s claim of the party obtaining the order; (A) (B) an order rRefusing to allow the disobedient party to support or oppose designated claims or defenses or , or pprohibiting the im fdisobedient party from introducing designated matters in evidence; (B) a (C) Partly or wholly n order sstriking out pleadings or parts thereof; (D) , or stStaying further proceedings until the order is obeyed;, or (E) Partly or wholly ddismissing the action or proceeding; or any part thereof, or (F) rRendering a default judgment by default against the disobedient party; or (C) ; (G) Instead of in lieu of any of the foregoing an order stated in Rule 37(b)(2)(A) through (F) orders or in addition thereto one, an order treating the failure to obey as a contempt of court the failure to obey any orders. (D) (3) Instead of an order stated in Rule 37(b)(2) or in addition to one, lieu of any of the foregoing orders or in addition, thereto, the court musthall require the disobedient party; failing to obey the order or the attorney advising the party; im or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds:

(A) tThat the failure was substantially justified; or (B) tThat other circumstances make an expense award of expenses unjust.

(c) Failing to admit; Eexpenses on Failure to Admit.

(1) If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the requesting party requesting the admissions subsequently thereafter proves the document’s genuineness of the document or the matter’s truth of the matter, thate party may move apply to the court for an order requiring the other party to pay theim party the reasonable expenses, including attorney’s fees, incurred in doing so. making that proof, including reasonable attorney’s fees.

109 (2) The court musthall issumake the order unless it finds that:

(A) (1) tThe request was held objectionable under Rule 36(a); (B) , or (2) tThe requested admission sought was noft nof substantial importance; (C) , or (3) tThe party failing to admit had reasonable grounds to believe that he party might prevail on the matter;, or (4) (D) there was oOther good reason for the failingure to admit existed. (c) (d) Failing ure of Party to Aattend at Own Ddeposition; or Sserve Answers to Iinterrogatory answeries; or Rrespond to inspection Rrequest for Inspection.

(1) If a party or a party’s or an officer, director, or managing agent, of a party or othera person designated under Rules 30(b)(6) or 31(a) to testify on behalf of a party fails the following, on a motion, the court where the action is pending may issue a just order regarding the failure, including an order under Rule 37(b)(2)(A) through (G):

(A) (1) tTo appear before the officer who is to take the party’s is deposition, after being served with a proper notice; (B) , or (2) tTo serve answers or objections to Rule 33 interrogatories after the other party properly served the interrogatories; or (C) submitted under Rule 33, after proper service of interrogatories, or (3) tTo serve a written response to a Rule 34 request for inspection after the other party properly served the request.

(2) submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule. Instead of an order or lieu of any order or in addition thereto it, the court musthall require the disobedient party; failing to act or the attorney advising thime paorty; or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds:

(A) tThat the failure was substantially justified; or (B) tThat other circumstances make an expense award of expenses unjust. (d) (3) A The failure to act under Ruldescribed 37(d) in this subsection may not be excused on the basis ground that the requested discovery sought is objectionable

110 unless the disobedient party failing to act has applied for a Rule 26(d) protective order under Rule 26(d).

(e) Additional Ssanctions. In addition to the application of those sanctions, specified iunder Rules 26(d) and Rule 37, and other provisions of this rule, the court may impose upon any party/ or party’s attorney counsel sjust uch sanctions, as may be just, including the payment of reasonable expenses and attorney’s’ fees, if:

(1) aAny party/ or party’s attorncounseyl (i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement under Rule 26(c) without good cause; , or (2) (ii) oOtherwise abuses the discovery process in seeking, making, or resisting discovery.

111 (e)

CHAPTERSECTION VI6. TRIALS

Rule 38. Right to a Jjury trial. of right

(a) RRight Ppreserved. The The right of trial by jury as as declared by the Mississippi Constitution or any Mississippi statute of the State of Mississippi musthall be preserved to the parties inviolate. (a) (b) Waiver of Jury Trial.

(1) A Pparty ies to an action may waive their rights to a jury trial by:

(A) fFiling with the court a specific, written stipulation that that the right has been waived with the court; and (B) rRequesting that the action be tried by the court.

(b)(2) The court may exercise , in its discretion to , require that the action be tried by a jury trial notwithstanding even though a party has filed a the waiver stipulation of waiver.

112 Rule 39. Trial by jury or by the court. [oOmitted].

113

Rule 40. Assigning ment of cases for trial.

(a) Methodss.

(1) A Ccourts musthall provide for placeing aonf actions upon the trial calendar: (b) (1)(A) Wwithout the parties’ request of the parties; or (2)(B) upoOn a party’s request of a party andwith notice to the other partipartieses; or, (C) Iin a such other manner as the court deems considers expedient. (3) (2) Prior to the calling of a case for trial and subject to the court’s sound discretion, the parties musthall be afforded ample opportunity, in the sound discretion of the court, ftor completeion of discovery.

(b) Notice.

(1) The court musthall provide by written direction to the clerk when a trial docket will be set.

(2) At least five days before the date on which the trial docket will be set, Tthe clerk musthall at least five (5) days prior to the date on which the trial docket will be set notify all attorneys and unrepresented parties without attorneys whavitngh cases upon the trial calendar of the time, place, and date when said the docket wishall be set.

(3) All cases musthall be set on the trial docket at least twenty (20) days before the trial date set for trial unless the parties agree on a shorter period is agreed upon by all parties or a smaller one is available under Rule 55.

(4) When an action is set for trial, Tthe clerk must prepare a trial docket shall be prepared by the clerk aidentifying the: t the time actions are set for trial and shall state (A) the cCase to be tried;, (B) Trial the date; (C) of trial, the aAttorneys in the case of record in the case, a; nd t (D) he place of tTrial location; and

114 (E) . Additionally, said trial docket shall reflect such aAttorneys of record and unrepresented parties representing themselves as were present in person or by a resent personally or by designee when the trial docket was set.

(5) Within three days after a case has been placed on the trial docket, Tthe clerk musthall within three (3) days after a case has been placed on the trial docket notify a ll party who was not ies who were not present at the docket setting in personally or by an their attorney of record at the docket setting of as to their trial setting.

(A) Notice musthall be by personal delivery or by mailing of a notice within said the three (3) -day period.

(6) Rule 40 does not apply to Mmatters:

(A) iIn which a defendant is summoned to appear and defend at a certain time and place certain pursuandert to Rule 81; or (B) iIn which a date, time, and place for trial have been previously set shall not be governed by this rule. (c) (c) Trial by Aagreement. Parties, including those who are in a fiduciary or other representative or fiduciary capacity, may waive any waiting period imposed by these rules or a statute and agree to a time and place for trial. (d) [Amended effective July 7/1/, 1986; 9/September 1/, 1987; 3/March 1/, 1989.]

Advisory Committee Historical Note

Effective March 3/1/, 1989, Rule 40(a) was amended by abrogating reference to local rules. 536-538 So. 2d XXX (West Miss. Cas. 1989).

Effective September 9/1/, 1987, Rule 40 was amended by adding subsection (c) providing forn the scheduling of trials by agreement of the parties. 508-511 So. 2d XXVIII (West Miss. Cas. 1987).

Effective July 7/1/, 1986, Rule 40(b) was amended by substantially rewriting it: (1) to shorten the time period provided for giving interested attorneys and parties notice of the setting of the trial docket; (2) to provide for at least twenty 20 days between the time of of the setting of a case on the docket and the time of the trial date; (3) to providrequire for

115 certain information to be recorded on the docket; and (4) for other purposes. 486-490 So. 2d XXI (West Miss. Cas. 1986).

Advisory Committee Notes

The twenty20-day waiting period doeis not inapplyicable to court hearings conducted by the court in connection with Rule 55 default judgments under Rule 55.

116 Rule 41. Dismissing an action.Dismissal of actions

(a) (a) Voluntary Ddismissal. Effect Thereof. (1) (1) By Pplaintiff or By Sstipulation.

(A) Subject to the provisions of Rule 66, or of any Mississippi statute of the State of Mississippi, and uponafter the paying ment of all costs, the plaintiff may dismiss an action may be dismissed by the plaintiff without a court order by filing of court:

(i) by filing aA notice of dismissal at any time before the adverse party services by the adverse party ofan answer or of a motion for summary judgment, whichever first occurs; or (ii) by filing aA stipulation of dismissal signed by all parties who have appeared in the action. (ii) (B) Unless otherwise stated in the notice of dismissal or stipulation states otherwise, the dismissal is without prejudice.

(2) (2) By court Oorder of Court. Except as statprovided in Rule 41(a)(1)paragraph (a)(1) of this rule, the plaintiff may an action shall not be dismissed an t the plactiontiff’s winsthout ance save couponrt order on of the court and upon such terms and conditions as the courthe courtt deems considers proper.

(A) A If a counter-claim has been pleaded by a defendant asserted before prior to the service upon him of the plaintiff serves a Rule 41(a)(2) ’s motion will to dismissremain pending if the , the action may be dismissed but the counter-claim shall remain pending for action is dismissed. (B) adjudication by the court. Unless the court order states otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Ddismissal: Effect Thereof.

(1) A defendant may move to dismiss the action or a claim if For failure of the plaintiff fails to:

(A) to pProsecute the action; (B) or to cComply with these rules; or

117 (C) Obey a any court order of court, a defendant may move for dismissal of an action or of any claim against him.

(2) In a nonjury action tried by the court:

(A) The defendant may move for dismissal:

(i) After the plaintiff has completed presenting evidence; (ii) , in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, wWithout waiving thise defendant’s right to offer evidence if n the court denies event the motion; is not granted, may move for a dismissal and (iii) oOn the basis ground thatthe plaintiff has failed to show a right to relief under upon the facts and the the law.

(B) the plaintiff has shown no right to relief. The court may then rentder a judgment against the plaintiff against the plaintiff or or may defer a clifinal decision ne to render any judgment until the close of all the evidence has been presented.

(i) If the court renders a judgment on the merits against the plaintiff, the court may make Rule 52(a) findings as provided in Rule 52(a).

(C) Unless the court in its order for dismissal otherwiseA Rule 41(b) dismissal and all other dismissals operate as an adjudication upon the merits unless:

(i) A court order states otherwise; (ii) Rule 41(b) states otherwise; (iii) Dismissal is for lack of jurisdiction; (iv) Dismissal is for improper venue; or (v) Dismissal is for failure to join a party under Rule 19.

(b) specifies, a dismissal under this subdivision and any other dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (c) Dismissing a al of Ccounter-claim, Ccross-Cclaim, or Tthird-Pparty Cclaim. This rule e provisions of this rule applies y to the dismissal of any counter-claim, cross-claim, or third-party claim.

118 (1) A claimant’s Rule 41(a)(1)(A)(i) voluntary dismissal by the claimant alone pursuant to paragraph (a)(1) of this rule shall be must be made filed before a responsive pleading is served; or, (2) Iif there is no responsive pleading, there is none, bbefore the evidence is introduced tion of evidence at a the trial or hearing or trial. (c) (d) Dismissal on Cclerk’s Mmotion. (d) (1) Notice. In all civil actions wherein there has been no action of record has occurred on the record during the preceding 12twelve months, the court clerk of the court musthall mail notice to the attorneys of record that sucthe court will dismiss the case will be dismissed by the court for fwailing tnt of prosecute ionit unless:

(A) An action is taken on the record wwithin thirty 30 days fromllowing the said mailing date; , action of recordor (B) A motion showing good cause for not di ismissing the case is filed with the court.

(1)(2) Effect. Except as stated in Rule 41(d)(1), taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, tthe court musthall dismiss theach such case without prejudice. But Tthe cost of filing suca dismissal h order of dismissal with the clerk musthall not be assessed against either party.

(3) Mailing NNotice deadlineotice.

(A) In every eligible case, the clerk must mail Tthe Rule 41(d)(1) notice shall be mailed annually in every eligible case not later than thirty 30 days before June 15 and December 15 of each year. (B) The clerk must present all eligible cases annually on or before June 30 and December 31, and all such cases to shall be presented to the court by the clerk for action therein on or before June 30 and December 31 of each year. (C) Rule 41(d)(1) through (d)(2) does not:

(i) Prohibit These deadlines shall not be interpreted as a prohibition the clerk from otherwise mailing notice and dismissing an eligible against mailing of notice and dismisscaseal thereon as cases may become eligible for dismissal under this under Rule 41(d); or

119 (ii) Limit the rule. This rule is not a limitation court’s power upon any other power that the court may have to dismiss any action upon a motion or otherwise. (2) . (e) (e) Costs of Previously Dismissed Actionpreviously dismissed action. If a plaintiff dismisses an action in a court and files another one based on or including the same claim and against the prior defendant, the court:

(1) If a plaintiff whose action has once been dismissed in any court commences an action based upon or including the same claim against the same defendant, the court mMay make such order for the plaintiff to pay the ayment of costs of the previously dismissed action as it decides to be proper; and (2) previously dismissed as it may deem proper and mMay stay the proceedings in the action until the plaintiff has complied with the order.

Advisory Committee Notes

After the court clerk has serves given notice pursuant to Rule 41(d) notice, a party seeking to avoid dismissal for lack of prosecution must either take some “action on the f record” or file a motion apply in writing with o the court and demonstratinge good cause for continuing the case. Rule 41(d) does not define what constitutes “an action ofn the record.” See Ill. Central . R.R. Co. v. Moore, 99 So. 2d 723, 726 (Miss. 2008) (discussing former “application in writing” and “act of record”)..

PPleadings, discovery requests, and deposition notices are “actions ofn the record.” See Iid. at 728.. But simply requesting that the case remain on the court’s active docket Ain an ex parte letter to the court clerk simply requesting that the case remain on the court’s active docket is not an a written motion application in writing that demonstratinges good cause. See Iid. at 729-730. Rather than writing a letter to the clerk, a party should file a written motion with the court: (1) that complies with Rule 7(b)(1); and (2) that demonstrates good cause; , and (3) that is should served such motion in accordiangce witoh Miss. R. Civ. P. 5. Id. at 727-730. But see Cucos, Inc. v. McDaniel, 938 So. 2d 238, 247 (Miss. 2006) (finding that the trial court did not abuse its discretion in considering the plaintiff’s attorney’s letter to the clerk requesting that the case remain on the court’s active docket as sufficient to prevent dismissal where :…((1i) the court held a hearing and the plaintiff’s lawyer also represented he was trying to schedule conferences so that defense counsel could talk to plaintiff’s expert witnesses in an effort to facilitate settlement; (ii2) local practice was to treat sucthe letters as sufficient; and (iii3) the plaintiff was not served with a proper copy of the dismissal order of dismissal). In Ggenerally, complyiangce with local practice that is inconsistent with the Mississippi Rules of Civil Procedure without more will not,

120 standing alone, be insufficient to prevent dismissal. See Ill. Cent.ral R.R. Co., v. Moore, 994 So. 2d at 723, 728 (Miss. 2008).

121 Rule 42. Consolidation; : separate trials.

(a) Consolidation. If pending When actionss involveing a common question of law or fact are pending before the court, the court may:

(1) it may oOrder a joint hearing or trial of one or more any matterss aint issue in the actions; (2) it may order all the actions coConsolidated the action; or and it (3) Issue manothery make such orders concerning the proceedings therein as may tend to avoid unnecessary costs or delay. (a) (b) Separate Ttrial.

(1) For convenience, The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive tto expedite and ion and economizey, the court may order a separate trial of:

(A) A of any claim, cross-claim, counter-claim, or third-party claim; , or of (B) aAny separate issue; oror (C) of aA ny number of claims, cross-claims, counter-claims, third-party claims, or issues.

(2) When ordering a separate trial, the court must, always preserve ing inviolate the right to fa jury trial by jury as declared stated in Miss. Const. by art. 4, § Section 31 of the Mississippi Constitution of 1890. (b) (c) Counties Within a Ssingle Ccircuit or or Cchancery Ccourt Ddistrict. When civil aIf actions involving ing a common questions of law or fact are pending in or law are pending in different counties of the same single Ccircuit or or cChancery court Court district, all matters presented to the judge prior to trial except dispositive motions , such actions may be consolidated for coordinated. or consolidated pretrial proceedings

(1) and, iIf the actions do not involve jury trials by jury, they may be consolidated for all purposes. (2) All judges presiding over the cases to be consolidated must agree to the consolidation and on to the judge who will preside over the cases for the purposes of Rule 42(c). stated herein. For the purposes of this rule, “pretrial proceedings” means all matters presented to the judge prior to trial except dispositive motions. (c)

122 [Amended February 2/20/, 2004 to correct scrivener’s error; amended effective September 9/25/, 2014.]

123

Rule 43. Taking of testimony.

(a) Form; and Aadmissibility. In all trial, witness s the testimony of witnesses musthall be taken orally in open court, unlexcept ass o otherwise provided by therwise stated in these rules or the Mississippi Rules of Evidence.

(b) [Abrogated].

(c) [Abrogated].

(d) Affirmation inst Lieaud of an Ooath. A solemn affirmation may be accepted instead of an oath Whenever under these rules required by these rulesan oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.

(e) Evidence on a Mmotions. IfWhen a motion is based on a non-record fact, s not appearing of the record the court may hear the matter on aaffidavits or partly or wholly presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

(f) Interpreters. The court may appoint an interpreter of its choown selectiong; and may fix his reasonable compensation . The compensation shall be paid out of funds provided according to by law or by one or more of the parties as ithe court may directs; and exercise discretion to may be taxed the compensation ultimately as costs, in the discretion of the court.

(f)(1) But However, if an interpreter is required by in the event and to the extent that such interpreters are required to be provided under the provisions of the Americans with Disabilities Act of 1990, Pub. L. No. 101–336, 104 Stat. 328 (1990), including related provisions, rules, and regulations, , 42 U.S. C. § 12131, et seq. or under rules or regulations promulgated pursuant thereto, such compensation and other compliance costs must be paid by the county where the court is located and not taxed of compliance shall be paid by the county in which the court sits, and shall not be taxed as costs.

[Amended effective January 1/10/, 1986; amended June 6/5/, 1997.]

Advisory Committee Historical Note

124 Effective July 7/1/, 1998, Rule 43(f) was amended in regarding to compliance with the Americans with Disabilities Act of 1990 § 201, 42 42 U.S.C. § 12131, et seq. (1990) and related provisions.

Effective January 1/10/, 1986, Rule 43(a) was amended to provide that testimony may be taken other than in open court, unas providedr by the Mississippi Rules of Evidence, and to delete references to the admissibility of evidence; Rule 43(b) [Mode and Order of Interrogation], and Rule 43(c) [Record of Excluded Evidence] were abrogated. 478-481 So. 2d XXVII (West Miss. Cas. 1986).

125 Advisory Committee Notes

The admission of telephonic testimony inst lieadu of a personal appearance in open court by the witness is within the trial court’s sound discretion of the trial court. See Byrd v. Nix, 548 So. 2d 1317 (Miss. 1989) (interpreting Miss. R. Civ. P. 43(a) and Miss. R. Evid. 611(a)).

126 Rule 44. Proving of ofan official rdoecorduments.

(a) (a) Authentication.

(1) Domestic.

(A) The following evidences Aan official record or entry in it when admissible and kept within the United States, or any state, district, commonwealth, territory, or territory subject to the United States’ administrative or judicial jurisdiction: insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced (i) by aAn official publication of the recordf; or (ii) or by aA copy attested by a person purporting to be the officer or officer’s deputy having with the legal custody of the record, or his deputy.

(B) If the official record is kept outside the State of Mississippi, the copy musthall be accompanied by a certificate under oath of the officer or officer’s deputy such person sthating:

(i) The person he is the legal custodian of tsuche record; and that (ii) tThe record is kept pursuant according to to state law. (1) (2) Foreign.

(A) The following evidences a A foreign official record , or an entry therein it , when admissible for any purpose:

(i) , may be evidenced by aAn official publication thereof the record; , or (ii) aA copy thereof, attested by a person authorized to do so make the attestation, and accompanied by a final certification.

(B) A Rule 44(a)(2)(A)(ii) final certification must certify the as to the genuineness:

(i) oOf the signature and official position (i) of the attesting person; or (ii)

127 (ii) oOf a foreign official whose certificate of genuineness relates to the attestation any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.

(C) A Rule 44(a)(2)(A)(ii) final certification may be made by:

(i) aAn embassy or legation secretary of an embassy or legation;, (ii) A consul general, consul, vice consul, or consular agent of the United States; , or (iii) aA diplomatic or consular official of the foreign country assigned or accredited to the United States.

(D) If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may , for good cause:

(i) shown, (i) aAdmit an attested copy without final certification; or (ii) (ii) pAllowermit an attested summary with or without final certification to evidence the foreign official record to be evidenced by an attested summary with or without a final certification. (2) (b) Lack of a Rrecord. If authenticated under Rule 44(a)(1) for a domestic record or under Rule 44(a)(2) for a foreign record, Aa written statement that after diligent search of designated records revealed no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records do not contain none such record or entry. (b) (c) Other proof. A party may prove an official record, an entry, or lack of entry by This rule does not prevent the proof of official records or of entry or lack of entrytherein by any other method authorized by law. (c) Advisory Committee Notes

Even though aA document has been authenticated underas required by this rule, it may still be excluded from evidence if , for example, it is irrelevant, or is hearsay, or is otherwise objectionable. For additional evidentiary rules concerning authentication, see Miss. R. Evid. 901–903.

128

Rule 44 The methods of authentication authorized by Rule 44 are additional and supplementary; they are not exclusive of other methods made available byunder Mississippi law. A party wantdesiring to introduce an official record in evidence has the option of proceeding under Rule 44 or under any other applicable provision of law.

Rule 44(a)(1) deals with two types of official documents: (1); those kept within the state; the state and (2) those kept without of it the state. A copy of the document must be attested to need only as to (1) be attested in the former case,and certified under oath as to (2)in the latter.

129 Rule 44.1. dDetermination of foreign law. [oOmitted].

Advisory Committee Notes

Under Miss. Mississippi Code Ann. otated §13-1-149, (1972) provides that courts musthall take judicial notice of all foreign law.

130 Rule 45. Subpoena.

(a) (a) Form; Iissuancessuance.

(1) Requirements. Every subpoena must:

(A) hall bBe issued by the clerk under the seal of the court; (B) , shall sState the name of the court and the title of the action; and (C) , and shall cCommand each person to whom it is directed to do the following at a specified time and place:

(i) aAttend and give testifmony; , or to (ii) pProduce and permit designated books, documents, electronically stored information, or tangible things in the person’s possession, custody, or control and allow them to be inspected ion and copyiedng of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person; , or (iii) to pAllowermit inspection of the premises to be inspected, at a time and place therein specified.

(2) Combining or separating command to produce or allow inspection; specifying form of electronically stored information.

(A) A command to produce or or to permitallow inspection may be joined with a commandone to appear at a trial, or hearing, or at deposition. Or it may , or may be issued separately. (B) A subpoena may specify the form or forms in which for producing electronically stored information is to be produced.

(1)(3) Issued by clerk. The clerk musthall issue a signed, sealed, but otherwise blank subpoena signed and sealed, but otherwise in blank, to a requesting party. That party m requesting it, whuo sthall fill it in before service. A command to produce or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(4) Issuing court. The court where the action is pending must issue a sSubpoena:

131 (A) s fTor appear at ttendance at a trial, or hearing, for attendance at a deposition; or (2)(B) A subpoena to produce or allow inspection. , andfor production or inspection shall issue from the court in which the action is pending. (C) Foreign litigation.

(i) ForIn the case of discovery to be taken in foreign litigation, a court clerk for the county where the discovery is to be taken must the subpoena shall beissued by a clerk of a court for the county in which the discovery is to a subpoena. be taken. (ii) The foreign subpoena musthall be submitted to the court clerk of court in the county in whereich discovery is soughtsought to be conducted in this state. (3)(iii) When a party submits a foreign subpoena to a court clerk of court in this state, the clerk, in accordance with that court’s procedure, musthall promptly issue a subpoena for service upong the the person stated in o which the foreign subpoena is directed. according to that court’s procedure.

(5) A subpoena issued by a court clerk under Rule 45(a)(4)(A) must be issued and served in compliance with Mississippi Rules. In addition, Tthe Rule 45(a)(4)(A)(iii) subpoena must:

(A) subpoena under subsection (3) must iIncorporate the terms used in the foreign subpoena; and (B) and it must cContain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and unrepresented parties in the proceeding to which the subpoena relates.

and any party not represented by counsel. (6) A subpoena issued by a clerk of court under subsection (3) must otherwise be issued and served in compliance with the rules of this state. A motion n application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a court clerk of court under Rule 45(a)(4)(A) subsection (3) must comply with Mississippi the rules of this state and be submitted to the issuing court in the county in whereich discovery is to be conducted.

(b) Examination Pplace of Examienation.

132 (1) Resident. A Mississippi resident of the State of Mississippi may be required to attend a deposition or to produce or allow , production or inspection only:

(A) iIn the county wherein the person resides; (B) In the county where the person or is employed or transacts his business in person; or (C) , or aAt ansuch other convenient place stated s in s fixed by an court order of the court.

(2) Nonresident. A non-residentonresident of Mthis sissippitate who is subpoenaed within ithis state may be required to attend only:

(A) iIn the county wherein the person is served;, or (b)(B) aAt such another convenient place stats is fixed in by an court order of the court.

(c) Service.

(1) Who. A subpoena may be served by: (A) aA sheriff; , or by (B) Sheriff’s is deputy; , or (C) by any oOther nonpersonwho is not a party aagnd is not less than 18 years orf oldager. (2) Personal service. A witness must be personally served with a subpoena.

(3) Proof of service. The person who served the subpoena may endorse a return. , and his return The endorsed thereturn on isshall be prima facie proof of service. Or the , or the person served may acknowledge service in writing on the subpoena.

(A) Proof of service must be filed with the court clerk where the subpoena was issued a statement:

(i) Certified by the person who served the subpoena; (ii) Stating the date and manner of service; (iii) The county where it was served; (iv) The name of the person who was served; and (v) The name, address, and telephone number of the person who served it.

133 (4) Service of the subpoena shall be executed upon the witness personally. Attendance fee. Unless the court decides otherwise Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue musthall pay tender to a non-partynonparty witness the fee for one day’s attendance plus mileage as allowed by law at the time the subpoena ofis serviced. the

(A) But fee for one day’s attendance plus mileage allowed by law. Wwhen the subpoena is issued on behalf of the State of Mississippi or a state n officer or agency, or agency thereof, fees and mileage do not need not be paitendered in advance. (1) Proof of service shall be made by filing with the clerk of the court from which thesubpoena was issued a statement, certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service. (d) (d) Protectiong a of Ppersons Ssubject to a Ssubpoenas.

When required. (1) In General. (1) On a timely motion, the issuing court from which a subpoena was issued musthall quash or modify the a subpoena if it:

(A) (i) fFails to allow reasonable time for compliance; (B) (ii) rRequires privileged or other protected matter to be disclosedure when waiver or another exception does not apply of privileged or other protected matter and no exception or waiver applies; , (iii) (C) dDesignates an improper place for examination;, or (B)(D) (iv) sSubjects a person to undue burden or expense.

(2) When allowed. The court may order appearance or production only upon specified conditions Iif a subpoena:

(A) (i) rRequires a trade secret or other disclosure of a trade secret or other confidential research, development, or commercial information to be disclosed;, or (ii) (B) rRequires disclosure of an unretained expert’s opinion or information:

(i) nNot describing specific events or occurrences in dispute; and

134 (C)(ii) rResulting from the expert’s study made not at the a party’s request of any party, the court may order appearance or production only upon specified conditions.

(3) (2) Subpoenas for prProduction or Iinspection.

(A) No appearance required. Unless also commanded to appear for a deposition, hearing, or trial, a A person commanded to produce and permit allow inspection and copying of designated books, papers, documents, electronically stored information, or tangible things inspection and copying of designatedbooks, papers, documents, electronically stored information, or tangible things, or to permit allow inspection of premises does need not need to appear in person at the place of production or or inspection unless commanded by the subpoena to appear for deposition, hearing or trial.

(i) Time for compliance. Unless the for good cause shown the court shortens the time for good cause, a subpoena for production or inspection musthall allow notat least less than 10ten days for the person upon whom it is served to complyingy with ithe subpoena. (ii) Notice. A copy of all sucthe subpoenas must hall be served immediately upon each party in accordiangce witoh Rule 5. (iii) Protective order. A subpoena commanding production or inspection wisll be subject to the provisions of Rule 26(d).

(A) (B) Objection. Within 10 days after a subpoena is served The person to whom the subpoena is directed may, within ten days after theservice thereof or on or before the time on or before the time specified in the subpoena for compliance , if such time is lessshorter than 10ten days after service, a person may serve upon the party or attorney dsesrvingnated in the subpoena a written objection to inspectiong or copying part of any oor all of the designated materials, or to inspectiong of the premises.

(i) If a person objects, objection is made, the party serving the subpoena musthall not be entitled to inspect and copy the material unless the issuing court orders otherwise.except pursuant to an order of the court from which the subpoena was issued. (B)(ii) Once a person objects, Tthe party serving the subpoena may, if objection has been made, move to compel the production or

135 inspection at any time upon notice to the person served for an order to compel the production or inspection.

(C) Avoiding unreasonableness and expense. On a prompt motion on or before the time specified in the subpoena for compliance, Tthe court, upon motion made promptly and in any event at or before the timespecified in the subpoena for compliance therewith, may:

(i) (I) qQuash or modify the subpoena if it is unreasonable or oppressive;, or (ii) (ii) cCondition the denial of the motion upon the party serving the subpoena advancing e by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (C) (e) (e) Duties iin Rresponding to a Ssubpoena.

(1) (1) Producing Ddocuments or Eelectronically Sstored Iinformation.

(A) Documents. (A) A person responding to a subpoena to produce documents must:

(i) hall pProduce them as they are kept in the usual course of business; or (ii) shall oOrganize and label them to correspond with the categories in the demand.

(B) Form for Producing Electronically Sstored Iinformation in unspecified formNot Specified. (B) If a subpoena does not specify a form for producing electronically stored information, the responding person responding must produce it electronically stored information:

(i) iIn thea form or forms in which it is ordinarily maintained; or (ii) iIn a a reasonably usable form or forms.

Electronically Sstored Iinformation in multiple forms. Produced in Only One Form. (C) The responding person responding does not need noto produce the same electronically stored information in more than one form.

136

(D) Electronically stored information Iinaccessible Electronically Stored Information. (D) The responding person does responding need not need to provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.

(i) On a motion to compel discovery, motion for a protective order, or motion to quash, the responding person responding must show that the information is not reasonably accessible because of undue burden or cost. (ii) If that showing is made, the court may nonetheless still order discovery from tsuche sources: (1) if the requesting party shows good cause and (2), considering the Rule 26(b)(6) limitations of Rule 26(b)(5). The court may also specify conditions for the discovery, including those listed in Rule 26(b)(5).

137 (3) (2) Claiming Pprivilege or Pprotection.

(A) Information Wwithheld. (A) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protectedion as trial- preparation materials, the claim must hall be:

(i) Expressly made; expressly and (ii) shall be sSupported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

Information Pproduced. (B) If information produced in response to a subpoena is subject to a claim that it is of privileged or of protectedion as trial-preparation material, the producing person making the claim may notify the receiving any party that received the information of the claim and the basis for it. Once notified, the receiving party may promptly present the information to the court under seal for deciding whether it is privileged or protected. The producing person must preserve the information until the claim is resolved. In addition, once the producing person notifies the receiving party of the claim, the receiving After being notified, a party must:

(i) must pPromptly return, sequester, or destroy the specified information and any copies it has; (ii) must nNot use or disclose the information until the claim is resolved; andmust (iii) tTake reasonable steps to retrieve the information if the party disclosed it before being notified;. and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (f) Sanctions.

(1) Rule 26(f) applies Oon a motion by of a party or of the person served with upon whom a subpoena ftor the producetion of books, papers, documents, electronically stored information, or tangible things is served andthat upon a showis ng that tthe subpoena power is being exercised:

(A) iIn bad faith; or

138 (B) iIn an unreasonable such manner as unreasonably to annoy, embarrass, or oppress the party or the person.

(2) On a motion as stated in Rule 26(f)(1) upon whom the subpoena is served, the court in whereich the action is pending:

(A) Musthall quash order that the subpoena; be quashed and (B) mMay issuenter such further additional orders if required by as justice may require to curb an abuses of the powers granted under this rule; and (C) . To this end, the court mMay impose an appropriate sanction. (f) (g) Contempt. The court that issued a subpoena may deem the person served with it to be in contempt if the person Ffails ure by any person without adequate excuse to obey thea subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.without adequate excuse. (g) [Amended effective March 3/13/, 1991; 7Jul/y 1/, 1997; 7Jul/y 1/, 1998; amended effective July 7/1/, 2009 to provide a procedure for foreign subpoenas. This provision shall takes effect and be is en forced from and after July 7/1/, 2009; it , and applies to requests for discovery in cases pending on July 7/1/, 2009; amended effective July 7/1/, 2013 to authorize a subpoena for electronically stored information]

Advisory Committee Historical Note

Effective March 3/13/, 1991, Rule 45(c) was amended to require the party causing a subpoena to issue to tender to a non-partynonparty witness the fee for one day’s attendance plus mileage allowed by law. Rule 45(e) was amended by deleting the provision for tendering the fee for one day’s attendance plus the mileage allowed by law to certain witnesses when subpoenaed. Rule 45(d) was amended to provide require the clerk for the county where the deposition is taken to issue the subpoena that when a deposition is to be taken oin foreign litigation the subpoena shall be issued by the clerk for the county in which the deposition is to be taken. 574-576 So. 2d XXIV-XXV (West Miss. Cas. 1991).

Effective July 7/1/, 1997 a new Rule 45 was adopted.

Effective July 7/1/, 2013, Rule 45 was amended to specifically authorize a subpoena to command the person to whom it is directed to produce and permit allow inspection and copying of electronically stored information. The same amendment also established a procedure to be used when privileged or trial-preparation material is inadvertently disclosed.

139

Advisory Committee Notes

A “foreign subpoena” means a subpoena issued under authority of a court of record of in a foreign jurisdiction. “Foreign jurisdiction” means a state other than this stateMississippi. A Llitigants in a foreign jurisdiction who wantdesire to obtain a subpoena to: (1) depose a Mississippi resident; , (2) to obtain records within Mississippi;, or (3) to inspect premises within Mississippi should follow the procedure established in the Uniform Interstate Depositions and Discovery Act. See Miss.issippi Code Ann. §§ otated section 11-59-1 to -15. et. seq. See also Miss. R. App. P. 46See the exclusion in M.R.A.P. 46(b)(11)(i) (request to have subpoena issued under this rule exception to requirements for for aAdmission of Fforeign Aattorneys Ppro Hhac Vvice). Rule 45(c)(1) regarding advance paying ment a to non-partyies of statutory witness fees and mileage in advance is complementary to Miss.issippi Code Ann. otated §§25-7-47 to through 25-7-59 (1972).

Rule 45(d)(2) is intended to ensure that there be is no confusion as to whether a nonperson not a party withn control, custody, or possession of discoverable evidence may be compelled to produce such it evidence without being sworn as a witness and deposed. The force of a subpoena for production of documentary evidence generally reaches all documents under the control of the person ordered to produce it except as to , saving questions of privilege or unreasonableness.

140 Rule 46. Exceptions unnecessary.

(a) An exception at any stage or step of the case or matter is unnecessary to lay a foundation for review when:

(1) ever aA matter has been called to the court’s attention of the court by objection, motion, or otherwise; and (2) tThe court has ruled thereon it.

(b) However, But failing to object does not prejudice if a party who has did not have an opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

141 Rule 47. Jurors.

(a) Examinationg of Jjurors.

(1) The qualifications of aAny person called as a juror for the trial of any cause musthall be examined under oath or upon affirmation as to his qualifications. (2) The court may examine a prospective juror or permit allow the parties or or their attorneys to conduct the examination of the prospective jurors or may itself cdo sonduct the examination. (a)(3) If n the court examines a prospective juror, latter event, it hemu court sthall permit allow the parties or of their attorneys to supplement the examination by with addifurtionalher inquiry.

(b) Jury Sselection and of Jurors; Jury Sservice. Jurors musthall be drawn and selected for jury service according to as provided by statutory lawe.

(c) Challenges. A party may challenge a juror for cause.

(1) 12-person jury. In an actions tried before a 12-person jury, each side may exercise four peremptory challenges. (2) 6-person jury. In an actions tried before a 6-person jury, each side may exercise two peremptory challenges. (3) Multiple parties. Where multiple parties compose one or both sides are composed of muliple parties, the court may allow challenges to be exercised separately or jointly. The court, and may also allow additional challenges. But in ; provided, however, in aall actions, the number of challenges allowed for each side musthall be identical.

(c) Parties may challenge any juror for cause. (d) Alternate Jurors. The A trial judge may exercise , int heis discretion to, direct that one or two jurors in addition to the regular panel be called and empaneled to sit as alternate jurors.

(1) In the order called, an Aalternate juror must replace a juror s, in the order in which they are called, shall replace jurors wwho becomes unable or disqualified to perform duties, prior to the time the jury retires to consider its verdict.

(2) An , become unable or disqualified to perform their duties. Aalternate juror s must be shall be drawn in the same manner as a regular juror and: ,

142 (A) shall hHave the same qualifications; , shall (B) bBe subject to the same examination and challenges for cause; (C) , shall tTake the same oath; and (D) shall hHave the same functions, powers, facilities, and privileges as the regular jurors.

(3) Each party musthall be allowed one peremptory challenge to alternate jurors in addition to those in Rule 47provided by subdivision (c) of this rule.

(A) The additional peremptory challenges provided for herein may be used only against an alternate juror. (B) only, and oOther Rule 47(c) peremptory challenges, provided by subdivision (c) of this rule, may not be used against an alternate juror. (d) [Amended effective June 6/24/, 1992.]

Advisory Committee Historical Note

Effective June 6/24/, 1992, Rule 47 was amended to stateprovide that that the court may allocate peremptory challenges to a side, rather than to a party and that, and, in the case of multiple parties on a side, the court may allow them peremptory challenges to be exercised jointly or separately and , aalso nd allowmay allow additional peremptory challenges. 598-602 So. 2d XXIII (West Miss. Cas. 1992).

Advisory Committee Notes

Under Rule 47(c), provides that each side may exercise peremptory challenges to prospective jurors. Under the liberal provisions of these rules for joinder of claims and parties, problems may arise where there are multiple parties comprising a side. If n souch cases, it is implicit that the court may apportion the challenges among the parties comprising that side when they cannot agree on the apportionment themselves.

For additional guidelines concerning the method by which peremptory challenges mushallt be exercised, see the Uniform Rules of Circuit and County Court Practice.

143 Rule 48. Juries; and jury verdicts.

(a) Circuit and Cchancery Ccourts. A Jjuryors in circuit and chancery court actions musthall consist of 12twelve persons, plus alternates according s provided by to Rule 47(d). A verdict or finding byof nine or more of the jurors musthall be taken as the jury’s verdict or finding of the jury.

(b) County Ccourt. A Jjuryies in an action in county courtcourt actions musthall consist of six persons, plus alternates according to as provided by Rule 47(d). A verdict or finding by of five or more of the jurors musthall be taken as the jury’s verdict or finding of the jury.

144 Rule 49. Verdict: general; General verdicts and special verdicts.

(a) General Vverdicts. Jury determination must be by general verdict unless this rule states Except as otherwise provided in this rule, jury determination shall be by general verdict. The remaining provisions of this rule should not be applied in simple cases where the general verdict will serve the ends of justice.

(b) Special Vverdict.

(1) The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event, the court may:

(A) may sSubmit to the jury written questions susceptible of categorical or other brief answer to the jury; or (B) may sSubmit written forms of the several special findings which might properly be made ounder the pleadings and evidence; or (C) it may uUse ansuch other method of submitting the issues and requiring written findings there on them as it deems most appropriate.

(2) The court musthall explain and instruct give to the jury such explanation and instruction concerning the matter thus submitted under Rule 49(b)(1) as may be necessary to enable the jury to make its findings upon each issue.

(A) WheIf in so doing so, if the court omits any issue of fact raised by the pleadings or by the evidence, each party waives theis right to a jury trial by jury of the omitted issue so omitted unless the party demands that it be submitted to the jury before the jury retires he demands its submission to the jury.

(i) If a party fails to do so, As to an issue omitted without such demand the court may make a finding as to the omitted issue; or (b)(ii) iIf the courtit does not make a finding, fails to do so, ithe court t musthall be deemed to have made a findingdone so in according with the to the judgment on the special verdict.

(c) General Vverdict Aaccompanied by Aanswers to Iinterrogatories.

(1) The court may exercise , in its discretion, may to submit to the jury:

145 (A) Written interrogatories on one or more fact issues necessary to be decided for a verdict; and (B) to the jury, tAccompanyingogether with instructions for a general verdict.

(2) , written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court musthall explain give such explanation or instruction as may be necessary to enable the jury both to make answers and to render a general verdict.

(3) When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers musthall be entered.

(4) When the answers are consistent with each other yet but one or more is inconsistent with the general verdict:

(A) , A judgment may be entered consistent with the answers, notwithstanding the general verdict;, or (B) tThe court may return the jury for further consideration of its answers and verdict; or (C) The court may order a new trial.

(5) When the answers are inconsistent with each other, and when and one or more is likewise inconsistent with the general verdict, the court must not enter a judgment and insteadshall not be entered, but the court shall:

(A) rReturn the jury for further consideration of its answers and verdict; or (c)(B) shall oOrder a new trial.

(d) Court to Pprovide Aattorneys Wwith Qquestions. Procedures in Rule 49(b) or 49(c) must In not bevent shall the procedures of subdivisions (b) or (c) of this rule be utilized unless the court provides all parties’ attorneys with a copy of the written questions to be submitted to the jury , within a reasonable time before final arguments are made to the jury, provides the attorneys for all parties a copy of the written questions to be submitted to the jury..

[Amended effective March 3/1/, 1989.] (d) Advisory Committee Historical Note

146 Effective March 3/1/, 1989, Rule 49 was amended to provide for a Ggeneral Vverdict Aaccompanied by Aanswers to Iinterrogatories in jury trials. 536-538 So. 2d XXVI- XXVII (West Miss. Cas. 1989).

Advisory Committee Notes

Rule 49 authorizes three types of verdicts: (1) —a general verdict; (2), a special verdict; and (3) , and a general verdict accompanied by answers to interrogatories. Trial judges have broad discretion to use special verdicts or general verdicts accompanied by answers to interrogatories. W.J. Runyon & Son, Inc. v. Davis, 605 So. 2d 38, 49 (Miss. 1992).

A general verdict is a single determination that disposes of the entire case; in contrast, whereas a special verdict requires the jury to decide specific factual issues. Special verdicts are appropriate in complicated cases where their use might assist in focusing the jury’s attention on the specific, relevant factual issues or in other cases in where ich jury bias or prejudice might arise. Thompson v. Dung Thi Hoang Nguyen, 86 So. 3d 232, 240 (Miss. 2012). If the special verdict submitted to the jury omits a fact issue raised by the pleadings or evidence, the parties will be deemed to have waived their right to jury trial on thatsuch issue unless onejury trial on such issue is demanded before the case is submitted to the jury. In the absence of such a demand, the trial court may make the requisite factual findings.

A court may also submit a general verdict with written interrogatories about specific factual issues to the jury. If the general verdict and interrogatory answers are consistent, the court musthall enter a judgment reflecting the verdict and answers. If the interrogatory answers are internally consistent yet but one or more answers is inconsistent with the general verdict, the court may: (1) enter judgment based upon the answers despite their inconsistency with the general verdict; (2), instruct the jury to further consider its verdict and answers; , or (3) order a new trial. When one of the interrogatory answers is inconsistent with another answer and also inconsistent with the general verdict, the court must:hall (1) instruct the jury to further consider its verdict and answers; or (2) order a new trial.

A special verdict or general verdict with interrogatories directing the jury to separate economic and non-economic damages is necessary if a defendant is going to seek application of statutory caps on non-economic damages. See, e.g., Intown Lessee Assocs., LLC v. Howard, 67 So. 3d 711, 723-24 (Miss. 2011). Likewise, Similarly, aa special verdict or a general verdict with interrogatories may be useful in a case in which twhere the law authorizes fault to be allocatedion of fault among the parties determined decided to be at fault. A special verdict or a general verdict with answers to interrogatories may also be useful in cases involving novel or uncertain law. If the trial court is reversed on appeal, the

147 special verdict or interrogatory answers may make retrial unnecessary if they contain sufficient factual findings on the relevant issues.

148 Rule 50. Motions: s for a directed verdict; and for judgment notwithstanding the verdict.

(a) Motion for dDirected Vverdict; : Wwhen Made; Eeffect.

(1) When. A party may move for a directed verdict at the close of the evidence offered by an opponent. (2) Specificity. A motion for a directed verdict must state the specific grounds for it. (3) Effect.

(A) If Aa party’s who motionves for a directed verdict at the close of the evidence offered by an opponentis denied, the party may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been madefiled. (B) Denying Aa motion for a directed verdict is which is not granted is not a waiver of a jury trial by jury eve even though all parties to the action have moved for directed verdicts.

(a)(4) Jury assent not required. A motion for a directed verdict shall state the specific grounds therefor. The A court order of the court granting a motion for a directed verdict is effective without the jury’s any assent of the jury.

(b) Motion for jJudgment Nnotwithstanding the Vverdict; procedure.

(1) Setting aside verdict and judgment. A party may file a motion to have the verdict and a judgment entered on it set aside Nnot later than ten10 days after the judgment is enteredry o. (2) No verdict returned. If no verdict was returned, a party may file a motion for judgment within 10 f judgment in accordance with a verdict, a party may file a motion to have the verdict and any judgment entered thereon set aside; or if a verdict was not returned, a party, within ten days after the jury has been discharged, may file a motion for judgment.

(b)(A) If no verdict was returned, the court may direct the entry of judgment or may order a new trial.

(c) Conditional Rrulings when motion is granted.on Grant of Motion.

149 (1) When granted. If a Rule 50(b) the motion for judgment notwithstanding the verdict provided for in subdivision(b) of this rule is granted, the court musthall also rule on the a motion for a new trial, if any, by:

(A) by dDetermining whether it should be granted if the judgment is thereafter subsequently vacated or reversed; , and (B) shall sSpecifying the grounds for granting or denying the motion for the a new trial. (2) No effect on finality of judgment. A court order conditionally granting a If the motion for a new trial as istated in Rule 50(c)(1) thus conditionally granted, the order thereon does not affect the finality of the judgment.

(3) Conditionally granting a motion for new trial when judgment is reversed. If n case the motion for a new trial has been conditionally granted yet and the judgment is reversed on appeal, the new trial musthall proceed unless the appellate court otherwise orders.has otherwise ordered.

(4) Effect of conditionally denying a motion for new trial on subsequent proceedings if judgment reversed. If n case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error on in that basis in an appeal.

(1)(A) Subsequent proceedings if judgment reversed. denial; and iIf the judgment is reversed on appeal, subsequent proceedings musthall be in accordiangce to with the appellate court’s order of the appellate court.

(2)(5) Motion for a new trial if verdict set aside. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may file a Rule 59 motion for a new trial pursuant to Rule 59 not later than ten 10 days after entry of thea judgment notwithstanding the verdict is entered..

(d) (d) Denying mial of Motion. If the motion for judgment notwithstanding the verdict is denied, on appeal the prevailing party who prevailed on the motion may, as appellee may assert , assert grounds entitling him to for a new trial onif the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, this rule nothing in this rule does not precludes it from determining that the appellee is entitled to a new trial or from directing the trial court to determine decide whether a new trial mushallt be granted.

150 [Amended effective July 7/1/, 1994; 7/July 1/, 1997.]

Advisory Committee Historical Note

Effective July 7/1/, 1997, Rule 50(b) was amended to clarify that Rule 50(b) motions must be filed not later than ten 10 days after entry of judgment. 689-692 So. 2d XLIX (West Miss. Cas. 1997).

Effective July 7/1/, 1994, Rule 50(b) was amended so that a motion for directed verdict is not a prerequisite to file a motion for judgment notwithstanding the verdict. 632-635 So. 2d XXX-XXXI (West Miss. Cas.es 1994). [Adopted August 8/21/, 1996; amended effective July 7/1/, 1997.]

Advisory Committee Notes

Rule 50 applies only in cases tried to a jury with power to return a binding verdict. Rule 50(a) enables the court to determine decide whether there is any question of fact to be submitted to the jury and whether any verdict other than the one directed would be erroneous as a matter of law; it is conceived intended to beas a device to save the time and trouble involved in a lengthy jury determination.

Rule 50(b) differs from its federal rule counterpart in that a motion for a directed verdict is no longer a prerequisite to file a motion for a judgment notwithstanding the verdict. New Hampshire Ins. Co. v. Sid Smith & Associates., Inc., 610 So. 2d 340 (Miss. 1992).

A Rule 50(b) motion for judgment notwithstanding the verdict made pursuant to M.R.C.P. 50(b) must be filed within 10 days after entry of the judgment. The trial court has no authority or discretion to extend the 10-day time period. Miss. R. Civ. P. 6(b)M.R.C.P. 6(b). A motion for a judgment notwithstanding the verdict is not appropriate for cases tried by a judge sitting without a jury. See Miss. R. Civ. P. 59(e)M.R.C.P. 59(e).

151

Rule 51. Jury Iinstructions to jury.

(a) Procedural Iinstructions. At the beginning of a trial and during itAt the commencement of and during the course of a trial, the court may orally:

(1) gGive t the jury cautionary and other instructions of law relating to trial procedure and, jury duty and function; and (a)(2) the duty and function of the jury, and may aAcquaint the jury generally with the nature of the case.

(b) Substantive Iinstructions. Each party to an action may submit six instructions on the substantive law of the case. HoweverBut, the court may permit allow the submission of additional instructions as justice requires. The court may also instruct the jury on its own. of its own initiative.

(c) When Ssubmitted.

(1) Pretrial hearing. A party must submit proposed Iinstructions proposed by parties shall be submitted to the court at the Rule 16 pre-trial hearing as provided by Rule 16. (1)(2) No pretrial hearing. If no n the event a pre-trial hearing is not conducted, proposed instructions musthall be delivered to the court and counsel for all parties no t later than 24 twenty-four hours prior to the time the action is scheduled to be tried.

(d) Identification. Instructions will not be identified with a party except as stated in this rule.

(1) Court. The court’s substantive instructions musthall be numbered and prefixed with the letter C. (2) Plaintiff. Plaintiff’s instructions musthall be numbered and prefixed with the letter P. (3) Defendant. Defendant’s instructions musthall be numbered and prefixed with the letter D. (4) Multiparty actions.

(A) In multi-party actions:

152 (i) , Roman nNumberals musthall be used to identify the instructions proposed by pinstructions of similarly aligned parties similarly aligned; (ii) ; the Roman numerals shall be pPlaced after the alphabetical designation of P or D; , as the case may be, and (iii) shall cConform to the sequential listing of parties plaintiff or defendant as stated in the complaint.

(2) Instructions shall not otherwise be identified with a party. (e) Objections.

(1) A No party may not claim assign as error as to the granting or the ddenying of an instruction unless the party objects thereto at any time before the instructions isare presented to the jury. (2) ; oOpportunity musthall be given to make the objection out of the jury’s hearing of the jury. (3) All objections:

(A) Musthall be stated into the record; (B) and shall state dDistinctly state the matter to which objected tio;n is made and (C) tThe grounds therefor objecting. (4) (f) Written instructionsInstructions to be Written. All instructions must be written unless Rule 51(a) states otherwiseExcept as allowed by Rule 51(a), all instructions shall be in writing. (c) (g) When rRead; Aavailabilityle to Counsel and Jurors. Instructions must be:

(1) Read Instructions shall be read by the court to the jury at the close of all the evidence and prior to oral argument; (2) ; they shall be aAvailable to counsel ftor use during argument; and. (3) Instructions shall be cCarried by the jury into the jury room when it retiring es to consider its verdict. (d) Advisory Committee Notes

It is the trial court’s responsibility to properly instruct the jury. “[W]here under the evidence a party is entitled to have the jury instructed regarding a particular issue and where

153 the party requests an instruction which for whatever reason is inadequate in form or content, the trial judge has the responsibility either to reform and correct the proffered instruction . . . himself or to advise counsel on the record of the perceived deficiencies . . . therein and to afford counsel a reasonable opportunity to prepare a new corrected instruction.” Mississippi Valley Silica Co., Inc. v. Eastman, 92 So. 3d 666, 669 (Miss. 2012) (quoting Byrd v. McGill, 478 So. 2d 302, 303 (Miss. 1985)). See also UCCCR . See Rule 3.07 ( of the Uniform Circuit and County Court Rules for additional provisions governing jury instructions). For example instructions, see the “. See also MMississippi Plain Language Model Jury Instructions–Civil of 2012” which were prepared by a commission appointed by the Mississippi Supreme Court. Although not formally adopted or approved by the the Mississippi Supreme Court of Mississippi, the “Plain Language Model Jury Instructions”instructions have been placed on its the Supreme Court website as an aid to trial judges and attorneys.

154 Rule 52. Findings by the court.

(a) EffectProcedure; effect..

(1) In a nonjury action tried on the facts, the court may:

(A) In all actions tried upon the facts without a jury the court mMay find the facts specially; (B) State its conclusions of law separately; and , and s (C) Musthall do so upon a party’s the request of any party to the suit oor when these rules required it.

(a)(2) Effect.by these rules, find the facts specially and state separately its conclusions of law thereon and A judgment must hall be entered accordingly. to the court’s findings and conclusions of law.

(b) Amendment.

(1) When. UpoThe court may amend its findings, make additional findings, and amend the judgment n on its own or a party’s motion of a party filed not later than ten10 days after the previous is entered. entry of judgment or entry of findings and conclusions, or upon its own initiative during the same period, the court may amend its findings or make additional findings and may amend the judgment accordingly. (2) Motion for new trial; challenging evidence sufficiency.

(A) The motion may accompany a Rule 59 motion for a new trial pursuant to Rule 59. (b)(B) When the court issues findings of fact are made in a nonjury actions trie tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised subsequently regardless of whether a the party objected to the findings raising the question has made in court or an objection to such findings or has filed a motion to amend them, or a motion for judgment, or a motion for a new trial.

[Amended effective, July 7/1/, 1997.]

155 Advisory Committee Historical Note Effective July 7/1/, 1997, Rule 52(b) was amended to clarify that a motion to amend the trial court’s findings must be filed not later thatn ten 10 days after entry of judgment. 689 So. 2d XLIX (West Miss. Cas. 1997). [Adopted effective July 7/1/, 1997.]

Advisory Committee Notes

Rule 52(a) requires a trial court, in a noncases tried without a jury action, to make specific findings of fact and conclusions of law when such findings and conclusions are requested by a party or when such findings and conclusions are required by the Mississippi Rules of Civil Procedure. In the absence of a party’s request for such findings and conclusions or a rule requiring them, such findings and conclusions, the trial court “may” make such findings and conclusions. See Gulf Coast Research Lab.oratory v. Amaraneni, 722 So. 2d 530, 534-35 (Miss. 1998). The principal purpose of the rule is to provide the appellate court with a record regarding what the trial court did, —the facts it found, and the law it applied , in partly so that the appellate court can refrain from deciding issues of fact and issues others the that were not decided by the trial court did not decide. Tricon Metals & Services., Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). “In cases of any significant complexity the word ‘may’ in Rule 52(a) should be construed to read ‘generally should.’ In other words, in cases of any complexity, tried upon the facts without a jury, the [Cc]ourt generally should find the facts specially and state its conclusions of law . . . . thereon.” Id. In contested complex cases, a trial court’s “failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Id. “[F]indings of fact by the chancellor, together with the legal conclusions drawn from those findings, are required [in cases involving the division of marital assets].” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994).

General findings of fact and conclusions of law may technically comply with Rule 52’s requirements despite a party’s request for specific findings of fact and conclusions of law. See Lowery v. Lowery, 657 So. 2d 817, 819 (Miss. 1995) (citing Century 21 Deep South Prop. v. Corson, 612 So. 2d 359, 367 (Miss. 1992)). If a trial court fails to make even general findings of fact and conclusions of law when specific findings of fact and conclusions of law are requested by a party, remand to the trial court may be necessary unless the evidence is so overwhelming so as to make findings unnecessary. See Lowery, v. Lowery, 657 So. 2d at 817, 819 (Miss. 1995).

A trial court has discretion to adopt a party’s proposed findings of fact and conclusions of law. Rice Researchers, Inc. v. Hiter, 512 So. 2d 1259, 1266 (Miss. 1987). A trial court’s

156 factual findings, even in cases where the trial court adopts verbatim a party’s proposed findings of fact, will be reviewed for abuse of discretion. Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 157 (Miss. 2011). See also Uniform Chancery Court Rule 4 (regarding See also the Uniform Chancery Court Rules regarding findings by the court).

157

Rule 53. Masters, referees, and commissioners.

(a) Definition; Aappointment; and Ccompensation.

(1) Definition. As used in these rules, the word “master” includes a referee, auditor, examiner, commissioner, and special commissioner. (2) Appointment.

(A) The court may appoint one or more persons in each county to be masters of the court. (B) , and tThe court in whereich any action is pending may appoint a special master therein it.

(a)(3) Compensation.As used in these rules, the word “Master” includes a referee, an auditor, an examiner, a commissioner, and a special commissioner. The A master musthall receive a reasonable compensation for services rendered, as fixed by law or as allowed by the court. Reasonable compensation must be and taxed as in the costs and collected in the same manner as the clerk fees of the clerk.

(b) Qualification; exceptions.

(1) Qualification. The A master musthall be an attorney at law, and authorized to practice law before all Mississippi courts of the State of Mississippi. (2) Exceptions.

(A) However, iIn extraordinary circumstances where the a finding to be made issued is of a complex, technical, non- legal nature, a person not her than an attorney who possesses ing the requisite qualifications of a personone skilled in the field, area, or subject of the inquiry may be appointed as a master. (b)(B) A ; additionally, persons nother than attorneys may be appointed as a special commissioners to conduct judicially--ordered sales and partitions of real or personal property.

(c) Reference: When Made. With the parties’ written consent of the parties, the court may refer any issue of fact or law to a master. Otherwise, a court must issue an order of reference shall be made only upon a showing that some exceptional condition requires it.

158

(d) Powers.

(1) Order appointing master. The An order of reference to the a master may:

(A) may sSpecify or limit the master’s is powers; and (B) Fix the time and place for beginning and closing the hearing and filing the master’s report; and (C) may dDirect him the master:

(i) tTo report only upon particular issues; (ii) or tTo do or perform particular acts; or (iii) or tTo receive evidence and report only on itevidence only. and

(2) Required powers.

(A) Regulating proceedings. may fix the time and place for beginning and closing the hearing and for the filing of the master’s report. Subject to the specifications and limitations stated in the reference order, , the a master has and musthall exercise the power:

(i) tTo regulate all proceedings in every hearing before the personim; and (ii) and tTo do take all actions and take all measures necessary or proper for the efficiently performiangce of his duties under according to the reference order.

(B) Examination; reporting; execution. A master must have the power to:

(i) Administer oaths; (ii) Examine witnesses in cases pending in a court; (iii) Examine and report on all referred matters; and (iv) To execute all decrees when directed to do so.

(C) Witnesses. In addition, a Mmasters must shall have the power to direct a subpoena to be the issued ance of subpoenas for a witnesses to attendappear before them and to testify in any matter referred to the master or generally in the pending actionause.

159 (i) If any witness shall fails to appear, the master musthall proceed by process to compel the witness to attend and give evidence.

(3) Other powers. A master He may require evidence to be produced before the person regarding the production before him of evidence upon all matters embraced in the reference order, including the production of all applicable books, papers, vouchers, documents, and writings.

(d) applicable thereto. He shall have the power to administer oaths, to take the examination of witnesses in cases pending in any court, to examine and report upon all matters referred to him, and to execute all decrees directed to him to be executed. (1) Masters shall have the power to direct the issuance of subpoenas for witnesses to attend before them to testify in any matter referred to them or generally in the cause. If any witness shall fail to appear, the master shall proceed by process to compel the witness to attend and give evidence. (e) Proceedings.

(1) Certified copy. When a reference is made, tThe clerk musthall forthwith furnish a the master with a certified copy of the reference order. The certified copy of reference, which musthall constitute sufficient certification of the maister’s authority. (2) First meeting. When the master receives the reference order, unless otherwise stated in it, Upon receipt thereof, unless the order of reference otherwise provides, the master musthall forthwith set a time and place for the first meeting of the parties or or their attorneys.

(A) Time. The first meeting must which is to be held in any event within ten 10 days following the date of the order of the reference order. (B) Notice. The master reference and musthall notify the parties or attorneys of the time and place for the first meeting. or their attorneys. (3) Master’s duty; reasonable diligence. The master has a It is the duty of the master to proceed with all reasonable diligence.

(A) On notice to the master and parties, a Either party , on notice to the parties and master, may move apply to the court for an order requiring the master to speed the proceedings and to make a his report.

160 (4) Failure to appear. If a party fails to appear at the appointed time and place appointed, the master may proceed ex parte or exercise , in his discretion , may to adjourn the proceedings to until a future subsequent date with y, giving notice of same of it o to the absent party. (f) (f) Statements of Aaccount. The court may direct order an accounting . to be taken in any cause in vacation or in term, and wWhen the master shall doubts as to the principles upon which the an account ing is shall be taken or as to the propriety of admitting any item of debit or credit claimed by either a party, the master may state those points in writing the points on which he shall doubt and submit thesame tfo r decision to the court in vacation or in term. (g) (g) Report. (h) (1) Contents; and Ffiling.

(A) Contents.

(i) The A master musthall prepare a report upon the matters submitted to him by the reference order. (ii) of reference and, iIf required to make findings of fact and conclusions of law, the master musthall statet them forth in the report.

(B) Filing. THhe master musthall file the report with the court clerk.

(i) of the court and, uUnless the reference order states otherwise directed by the order of reference, the master musthall file with it a transcript of the proceeding and of the original evidence in the original exhibits. (1)(ii) The clerk musthall forthwith mail notice the report has been filed to all parties notice of the filing. (2) Acceptance; and Oobjections. The court musthall accept the master’s findings of fact unless manifestly wrong.

(A) Within ten 10 days after of being served with notice the report has been filed, of the filing of the report a ny party may serve written objections thereto it upon the other parties. (B) A motion pplication to the court for action upon the report and upon objections thereto it musthall be by motion and upon notice as provided by according to Rule 6(d).

161 (C) After a hearing, Tthe court after hearing may:

(i) aAdopt the report; (ii) or mModify it; (iii) or mPartly or wholly ay reject it; in whole or in any part or may (iv) rReceive further additional evidence; or (v) may rRecommit it with instructions. (2) (3) Stipulationg as to Ffindings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference. But ; however, when the parties stipulate that a master’s finding of fact mustshall be final, only a questions of law arising upoutn of the report musthall subsequently thereafter be considered. (3) (4) Draft Rreport. Before filing his a report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. (4) (5) (h) Bond; Wwhen Rrequired.

(A) The court may require a special commissioner appointed to conduct a sale of any property to give bond:

(i) Under in such penalty and with sufficient sureties as the court to be approvesd and as the court may directs; (ii) , pPayable to the State of Mississippi; , and (iii) cConditioned on the special commissioner to paying according to law all money which may come into the person’is hands as such special commissioner.

(B) The bond musthall be filed with the court.

(C) For any breach of a bond its condition, the court may order execution may be issued on order of the court for the sum due. But However, when the court clerk of the court or the sheriff is appointed to make a sale and the order does not provide for a bond, the official bond of the clerk or the sheriff musthall be held as security in the premises.

[Amended effective March 3/1/, 1989; April 4/13/, 2000.]

162 Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 53(c) was amended to give the court discretion to appoint a master on the written consent of the parties without a showing of an exceptional condition. 753-754 So. 2d. XVII (West Miss. Cas. 2000).

Effective March 3/1/, 1989, Rule 53 was amended to correct a typographical error. 536-538 So. 2d XXVII (West Miss. Cas. 1989).

163

SECTION 7CHAPTER VII. JUDGMENT

Rule 54. Judgments; costs.

(a) Definitions. As used in these rules, a “Jjudgment” as used in these rules includes a final decree and any order from which an appeal lies. (b) Judgment Upon Mmultiple Cclaims; or Iinvolving Mmultiple Pparties.

(1) When an action presents more than one claim for relief— is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim—, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed:

(A) an expressed dDetermination that there is no just reason for delay; and upon an expressed (B) dDirection for the entry of the judgment.

(2) In the absence of such the expressed determination and direction, regardless of how it is designated, any order or other form of decision, however designated which adjudicatinges fewer than all of the claims or the rights and liabilities of fewer than all the parties:

(A) Doeshall not terminate the action as to any of the claims or partyies; and (B) Tthe order or other form of decision is subject to revision at any time before the entry of a judgment adjudicating all the claims and the rights and liabilities of all the parties. (b) (c) Demand for Jjudgment.

(1) Default judgment. A default judgment by default musthall not be different in kind from or exceed inthe amount of that requested prayed for in the demand for judgment. (2) Judgment other than default. A final judgment other than one by defaultExcept as to a party against whom a judgment is entered by default, every final judgment musthall grant the relief to the party in whose favor it is rendered as entitled by the proof and within the court’s jurisdiction to award to which the party in whose favor it is rendered is entitled by the proof and which is within

164 the jurisdiction of the court to grant, even if the party has not demanded such relief in the partyi’s pleadings. But a ; however, final judgment musthall not be entered for a monetary amount greater than that demanded in the pleadings or amended pleadings. (c) (d) Costs.

(1) Automatic; exceptions. Unless a statute Except when expressly states otherwise or the court directs differently provision therefor is made in a statute, costs musthall be awarded automatically llowed as of course to the prevailing party unless the court otherwise directs in all civil actions, including those , and this provision is applicable in all cases where in which the State of Misslissippi is a party plaintiff in civil actions as in cases of individual suitors. (2) Security. If n all cases where costs are awarded djudged against any party who has given security for costs, the court may order execution may be ordered to issue against tsuche security. (3) When taxed. Costs may be taxed by the clerk on one day’s notice.

(A) Review. The court may review the clerk’s action Oon a motions served within five days from when the clerk’s notice of the receipt of notice of such taxation is received. (d) , the action of the clerk may be reviewed by the court. Advisory Committee Notes

Although it is not specifically described in the rule itself, there are several different stages that lead to the creation of a judgment that is final and appealable. It is important to differentiate the various steps that are part of this process.

The first distinction is between the adjudication, either by a decision of the court or a verdict of the jury, and the judgment that is entered thereon it. The terms “decision” and “judgment” are not synonymous under these rules. The decision consists is of the court’s opinion which comprised nsists of findings of fact and conclusions of law; the rendition of judgment is the pronouncement of that decision and the act that givinges it legal effect.

A second distinction that should be noted is between the judgment itself and the “filing,” or the “entry,” of the judgment. A judgment is the final determination of an action and thus has the effect of terminating the litigation; it is “the act of the court.” “Filing” simply refers to the delivery of the judgment to the clerk for entry and preservation. The “entry” of the judgment is the ministerial notation of the judgment by the court clerk of the court according pursuant to Rules 58 and 79(a); however, it is crucial to the effectiveness of the

165 judgment and for measuring the time periods for appealing and the filing of various motions.

Rule 54(b) is designed to facilitate the entry of a final judgment upon one or more but fewer than all the claims or as to one or more but fewer than all the parties in an action involving multiple claims or multiple parties , so as to enable the non-prevailing party to perfect an appeal as of right of a final judgment. Absent a Rule 54(b) certification under Rule 54(b), any order in a multiple-party or multiple-claim action that does not dispose of the entire action is interlocutory, even it if appears to adjudicate a separable portion of the controversy. Given that separate, piecemeal appeals of interlocutory orders entered in a single action would usually be inefficient, parties may not appeal interlocutory orders as of right. A party may instead: (1) Instead, a party may rrequest the trial court to certify such an interlocutory order as a final judgment pursuant according to Rule 54(b), in order to take so that an appeal of right may be taken pursuandert to Miss. R. App. P. 4; or (2), or, alternatively, a party may petition the Mississippi Supreme Court for permission to appeal an interlocutory order pursuant under to Miss. R. App. P. 5.

If a party attempts to perfect an appeal as of right pursuant according to Miss. R. App. P. 4 as to of an order that does not dispose of all the claims between the parties, such the appeal will be dismissed for lack of jurisdiction unless the order appealed from has been properly certified properly as a final judgment pursuant under to Rule 54(b). See, e.g., Williams v. Delta Reg’l Med. Ctr., 740 So. 2d 284 (Miss. 1999).

Rule 54(b) gives a trial court discretion to certify an interlocutory order as a final judgment if the court determines decides that “there is no just reason for delay” of the appeal. Rule 54(b) certification should be reserved for cases where in which delaying of the appeal might prejudice a party. See Cox v. Howard, Weil, Laboussie, Friedrichs, Inc., 512 So. 2d 897, 900 (Miss. 1987). Courts should grant Rule 54(b) certification “cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals.” See Indiana Lumbermen’s Mut. Ins. Co. v. Curtis Mathes, Mfg. Co., 456 So. 2d 750, 752-53 (Miss. 1984).

If the trial court chooses to certify an interlocutory order as a Rule 54(b) ffinal judgment pursuant to Rule 54(b), it must do so in a definite, unmistakable manner. If the reasons for the Rule 54(b) certification are not clear from the record, the trial court should setate forth its findings and reasons for certification. See Cox, 512 So. 2d at 900-01.

Rule 54(c) must be read in conjunction with Rule 8, which requiringes that every pleading asserting a claim to include a demand for the relief to which the pleader believes himself the party is entitled. As a resultThus, Rule 54(c) applies to any demand for relief,

166 whether made filed by defendant or plaintiff or presented by way of an original claim, counter-claim, cross-claim, or third-party claim. A default judgment may not extend to matters outside the issues raised by the pleadings or beyond the scope of the relief demanded; a default judgment in a default case that awardings relief that either is more than or different in kind from that what is requested originally requested is null and void, and a defendant may attack it collaterally in another proceeding.

Three related concepts should be distinguished in considering Rule 54(d): (1)These are costs; (2) , fees; and , and (3) expenses. “Costs” refer toare those charges that one party has incurred and is permitted allowed to have an opponent reimbursed by his opponent as part of the judgment in the action. Although “costs” has an everyday meaning synonymous with “expenses,” taxable costs under Rule 54(d) is are more limited and represents those official expenses like , such as court fees , that a court will assess against a litigant. Costs almost always amount to less than a successful litigant’s total expenses in connection with a law suit, and their recovery is nearly always awarded to the successful party. “Fees” are those amounts paid to the court or one of its officers for particular charges that generally are delineated by statute. Most Fees commonly these include such items like as filing fees, clerk or sheriff ’s and sheriff’s charges, and witnesses’ fees. In most instances, a costs n award of costs will include reimbursement for the fees paid by the party in whose favor the cost award is madeissued.

“Expenses” include all the expenditures actually made incurred by a litigant in connection with the action. Both fees and costs are expenses but by no means constitute all of them. Absent a special statute or or rule, or an exceptional exercise of judicial discretion, such items like as attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs. These expenses must be borne by the litigants.

167

Rule 55. Default.

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided stated by in these rules, the clerk must enter the party’s default when and that fact is made to appearbecomes apparent by affidavit or otherwise, the clerk shall enter his default.

(b) Judgment. In all cases, a the party entitled to a default judgment by default musthall apply move to the court therefor one.

(1) If the party against whom a default judgment by default is sought has appeared in the action, the party or party’s he (or if appearing by representative , his representative) musthall be served with written notice of the application motion for judgment at least three days prior to the hearing on itf such application.

(A) But the court may enter ; however, a default judgment judgment by default may be entered by the court on the day the case is set for trial without such three days’ notice. (B) The court may conduct a jury or nonjury hearing in its discretion or order references it deems necessary and proper if If in order to enablinge the court to enter judgment or to carry it into effect it is necessaryrequires:

(i) to take aAn accounting; (ii) or to dDetermininge the amount of damages; (iii) or to eEstablishing the truth of any allegation verment by evidence; or (b)(iv) to make an iInvestigationg of any other matter, the court may conduct such hearing with or without a jury, in the court’s discretion, or order such references as it deems necessary and proper.

(c) Setting Aaside Ddefault. On a showing of For good cause shown, the court may set aside an entry of default. And and, if a default judgment by default has been entered, the court may likewise set it aside in accordiangce witoh Rule 60(b).

(d) Plaintiffs, Ccounter-Cclaimants, and Ccross-Cclaimants. The provisions of this rule apply whether the party entitled to the a default judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claimant, or counter- claimant. In all cases a judgment by default is subject to the limitation of in Rule 54(c).

168

(e) Proof Rrequired Ddespite Ddefault in Ccertain Ccases. No judgment by default musthall be entered against a person under a legal disability or a party to a suit for divorce or annulment of marriage unless the claimant establishes his a claim or rights to relief by evidence. But a , provided, however, that divorces on ground ofor irreconcilable differences may be granted pro confesso according tos provided by statute. (e) Advisory Committee Notes

Because Before a default judgment can be entered, the court must have jurisdiction over the party against whom the judgment is sought before a default judgment can be entered, ; which also means that the party must have been effectively served with process.

Entry of default for failure to plead or otherwise defend is not limited to situations involving a failure to answer a complaint, but applies to any of the pleadings listed in Miss. R. Civ. P. 7(a).

The words “otherwise defend” refer to a Rule 12(b)(6) motion. See Miss. R. Civ. P. Rule 12(b). The defending party’s mere appearance by the defending party will not keep the party from being in default for failure to plead or otherwise defend,. B but if the party appears and indicates a desire to contest the action, the court can exercise its discretion and refuse to enter a default judgment. This approach is in line with the general policy that whenever there is doubt whether a default judgment should be entered, the court ought to allow the case to be tried on the merits.

Rule 55(a) does not represent the only source of authority in these rules for the entry of a default that may lead to judgment. For example, Rule 37(b)(2)(C) and Rule 37(d) both provide for the use of a default judgment as a sanction for violation of the discovery rules.

When the prerequisites of Rule 55(a) are satisfied, the clerk must an enter a ry of default shall be made by the clerk without court any action being taken by the court. The clerk’s function, however, is not perfunctory. Before the clerk can enter a default can be entered, the clerk must examine the filed affidavits filed and be satisfied that the requirements of Rule 55(a) are met. See Miss. R. Civ. P. Aapp. A, Forms 36–, 37, and 38. These elements of default must be shown by affidavit or other competent proof.

The traditional requirement that “one had to file documents in or actually physically appear before a court” in order to make a Rule 55(b) appearance has been relaxed. If a party has made filed “an indicia of defense or denial of the allegations of the complaint,” such

169 the party is entitled to written notice of the a application motion for default judgment at least three days prior to the motion hearing on such application. Wheat v. Eakin, 491 So. 2d 523, 525 (Miss. 1986). “[I]nformal contacts between parties may constitute an appearance.” Holmes v. Holmes, 628 So. 2d 1361, 1364 (Miss. 1993). The Mississippi Supreme Court has found an appearance when “the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant’s intent to defend, 2) filed a document with the court indicating in writing the defendant’s intent to defend, or 3) had counsel communicate to opposing counsel the defendant’s intent to defend.” Amer.ican States Ins. Co. v. Rogillio, 10 So. 3d 463, 467 (Miss. 2009). A defendant who has filed an answer to the complaint but who has failed to file a timely answer to an amended complaint has entered an appearance for Rule 55(b) purposes. See Chassaniol v. Bank of Kilmichael, 626 So. 2d 127, 130-31 (Miss. 1993). A defendant whose attorney has written the plaintiff’s attorney in a divorce case and informed him that the defendant desired to settle the case if possible but intended to defend if no settlement could be reached has entered an appearance for Rule 55(b) purposes. See Holmes v. Holmes, 628 So. 2d 1361, 1364 (Miss. 1993). A defendant who has served a motion to set aside the entry of default has entered an appearance for Rule 55(b) purposes. See King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994). A defendant , cannot, however, enter a Rule 55(b) appearance before the case has been commenced. See Kumar v. Loper, 80 So. 3d 808, 814 (Miss. 2012). The defendant bears the burden of proving that an appearance has been madefiled. See Dynasteel Corp. v. Aztec Indus., Inc., 611 So. 2d 977, 982 (Miss. 1992).

Although an appearance by a defending party does not immunize defendant from being in default for failure to plead or otherwise defend, it does entitle defendant to at least three days written notice of the application motion to the court for the entry of a default judgment based on his default. This enables a defendant in default to appear at a subsequent hearing on the question of damages and contest the amount to be assessed against that partim. Damages must be fixed before an entry of default judgment, and and there is no estoppel by judgment until the judgment by default has been entered.

When a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits. A Rule 55(b) judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment; however, an order denying a motion for a default judgment is interlocutory and not appealable. Miss. R. Civ. P. 54(a).

After entry of default by the clerk, defendant has no further standing to contest the actual factual allegations of the plaintiff’s claim for relief. If a defendant wishes wants an opportunity to challenge plaintiff’s right to recover, a defendant’s only recourse is to show

170 good cause for setting aside the default under Rule 55(c), and if that , failsing that, to contest the amount of recovery.

After entry of default by the clerk, the court must conduct an evidentiary hearing on the record to determine decide damages in cases in where which the plaintiff seeks unliquidated damages. Capitol One Services., Inc. v. Rawls, 904 So. 2d 1010, 1018 (Miss. 2004). “[L]iquidated damages are set or determined by contract, while unliquidated damages are established by a verdict or award and cannot be determined by a fixed formula.” Id. (quoting Moeller v. Amer.ican Guar. & Liab. Ins. Co., 812 So. 2d 953, 959-60 (Miss. 2002)). PuUnderrsuant to Miss. R. Civ. P. 54(c), a default judgment shall must only order the type of relief sought in the demand for judgment (i.e., money damages, equitable relief, etc.), and shall must not order money damages in an amount that exceeds the amount sought in the demand for judgment.

If a default has been entered, but a default judgment has not yet been entered, the defending party may move to set aside the entry of default “[f]or good cause shown” purunder suant to Miss. R. Civ. P. 55(c). If a default judgment has been entered, the defendant may move to set aside the default judgment pursuandert to Miss. R. Civ. P. 60(b). The standard for setting aside an entry of default punderrsuant to Miss. R. Civ. P. 55(c) is more liberal than the standard for setting aside a default judgment doing so pursuandert to Miss. R. Civ. P. 60(b). See King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994).

171 Rule 56. Summary judgment.

(a) For Cclaimant. AAfter 30 days from when an action is commenced or after the adverse party serves a motion for summary judgment, a party seeking a declaratory judgment or to recover upon a claim, counter-claim, or or cross-claim, or to obtain a declaratory judgment may, at any time after the expiration of thirty days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment or a partial summary judgment in in that party’is favor. upon all or any part thereof.

(b) For Ddefending Pparty. AA party against whom a claim, counter-claim, or cross- claim is asserted or a declaratory judgment is sought may , at any time, move with or without supporting affidavits for a summary judgment or partial summary judgment in thatis party’s favor as to all or any part thereof.

(c) Motion; and Pproceedings Thereon.

(1) Notice. The motion musthall be served at least 2ten 1 days before the hearing time datefixed for the hearing. (2) Opposing affidavits. TThe adverse party prior to the day of the hearing must serve ay serve opposing affidavits with its response to the motion and in any event, not later than 10 days before the hearing. . (3) Summary judgment; partial summary judgment.

(A) The Summary judgment or partial summary judgment sought musthall be rendered forthwith if the pleadings, depositions, interrogatory answers to interrogatories, and admissions, on file, togetherand with the affidavits in the record , if any, show that that ere is no genuine issue as to any material fact exists and that the moving party is entitled to a judgment as a matter of law. (B) Although a genuine issue as to the amount of damages exists, A ssummary judgment , interlocutory in character, may be rendered on the issue of liability alone , although there is a genuine issue as to the amount of damagesand is interlocutory in character. (c) . (d) Case Nnot Ffully Aadjudicated on Mmotion.

(1) If If oon a motion under this rule a trial is necessary because judgment is not rendered on the whole case or for all requested relief, the court must if practicable at the motion hearing judgment is not rendered on the whole case or for all the

172 relief asked and a trial is necessary, the court at the hearing of the motion, ascertain what material facts exist without substantial controversy and what material facts are actually disputed in good faith by examining the pleadings and the evidence before it and by interrogating counsel.

(A) Afterwards, the court must issue an order specifying the facts that appear without substantial controversy, , shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in disputed,controversy, and directing ordering such furadditionalther proceedings as are just in the action as are just. (B) The trial must be conducted according to the order, including that Upon the trial of the action the ffacts so specified in it be shall be deemed established. (d) , and the trial shall be conducted accordingly. (e) Form of AffidavitsAffidavit form; Furtheradditional Ttestimony; Ddefense Rrequired. (1) A Ssupporting or and oopposing affidavit must:

(A) Musthall be made based on personal knowledge; (B) , sSthatlle set forth such facts as would be admissible in evidence; and (C) , and shall Affirmatively show affirmatively that the affiant is competent to testify to the matter stated therein it.

(2) Sworn or certified copies of all papers or parts of papers thereof referred to in an affidavit musthall be attached to the affidavit thereto or served therewith it.

(3) The court may permit allow an affidavits to be supplemented or opposed by depositions, interrogatory answers to interrogatories, or ofurther affidavits.

(4) When a motion for summary judgment is made filed and supported as stated provided in this rule, an adverse party may not rest upon the mere allegations or denials of hin that party’ss pleadings.

(A) By affidavit or otherwise under this rule, the party’s , but his response, by affidavits or as otherwise provided in this rule, must stateet forth specific facts showing that there is a genuine issue for trial exists. (B) If the party’s response fails does noto do so respond, summary judgment , if appropriate, musthall be entered against that partyim.

173 (e) (f) When AAffidavitts Are Uunavailable. If it appears from the nonmovant’s affidavits that for reasons stated the nonmovant Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify opposition to the motion,h is opposition, the court may:

(1) Deny the motion; refuse the application for judgment or may oor (2) Order a continuance to permit allow the nonmovant to obtain affidavits to be obtained, take or depositions, or conduct other discovery; to be taken or discovery to be had or (3) or Issue may make such an order as is just. (f) (g) Affidavits Made in Bbad Ffaith. If it appears to the court’s satisfaction Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are is presented under this rule in bad faith or solely for the purpose of delay, the court musthall forthwith order the offending party employing them to pay to the other party’s the amount of the reasonable expenses incurred because the affidavit was hich the fileding of the affidavits caused him to incur, including reasonable attorney’s fees. The court may also decide , and any offending party or attorney is may be adjudged guilty of contempt. (h) Costs, attorney’s fees to Prevailingif Party When Ssummary Jjudgment Ddenied. If summary judgment is denied, the court musthall award to the prevailing party the reasonable expenses incurred in attending the motion hearing. The court of the motion and may award attorney’s fees , if it finds that the motion is without reasonable cause, award attorneys’ fees. (h) Advisory Committee Notes

It is important to distinguish between among: (1) a Rule 56 motion for summary judgment; (2), a Rule 12(b)(6) motion to dismiss for failure to state a claim;, and (3) a Rule 12(c) motion for judgment on the pleadings.

When ruling on a Rule 56 motion for summary judgment, the trial court may “pierce the pleadings” and consider extrinsic evidence like , such as affidavits, depositions, interrogatory answers, to interrogatories, and admissions.

But Wwhen ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the trial court may not “pierce the pleadings” and musthall only consider the allegations contained in the pleading asserting the claim. Likewise, Similarly, wwhen ruling on a Rule

174 12(c) motion on the pleadings, the trial court musthall only consider the allegations within the pleadings.

If matters outside the pleadings are presented to and considered by the trial court in connection with on a Rule 12(b)(6) or (b)(c) motion for judgment on the pleadings or a motion to dismiss for failure to state a claim, the trial court must treat the motion as one for summary judgment and give all parties a reasonable opportunity to respond accordingly. See Miss. R. Civ. P. 12(b) and (c); Huff-Cook, Inc. v. Dale, 913 So. 2d 988, 992 (Miss. 2005). If the trial court converts a Rule 12 motion into a Rule 56 motion, it he trial court must give the parties notice of theof the conversion motion’s changed status and at least 10 ten days’ notice of its intent to conduct a summary judgment hearing on a certain date certain. See Dale, 913 So. 2d at 988. A trial court’s failure to give proper notice constitutes reversible error. See Palmer v. Biloxi Reg’l Med. Ctr., Inc., 649 So. 2d 179, 183 (Miss. 1994).

A trial court need does not need to make findings of fact when ruling on a motion for summary judgment because “a Rule 56 summary judgment hearing is not a nonjury n action ‘tried upon the facts without a jury’ so as to trigger Rule 52 applicability.” See Harmon v. Regions Bank, 961 So. 2d 693, 700 (Miss. 2007). See also Uniform Rules of Circuit and County Court Practice. A Mmovant must do more than simply state a meritorious defense. Pursuant to Under Rule 78, oral hearing on a motion for summary judgment is not necessary where such hearing is dis pensed with by court order or rule.

175 Rule 57. Declaratory judgment.s

(a) Procedure. Courts of record within their respective jurisdictions may declare rights, status, and other legal relations regardless of whether ofurtther relief is or could be claimed. The court may refuse to render or enter order a declaratory judgment where such judgment, doing so if entered, would not terminate the uncertainty or controversy giving rise to the proceeding. (a) (1) The procedure for obtaining a declaratory judgment musthall be in accordiangce witho these rules. (2) , and tThe right to a jury trial by jury may be demanded under the circumstances and in the manner provided stated in Rules 38 and 39. (3) The existence of another adequate remedy does not preclude a judgment for declaratory relief in an actions where it is appropriate. (4) The court may order a speedy hearing of an action for declaratory judgment and may advance it on the calendar. The judgment in an action for declaratory relief action may be either affirmative or negative in form and effect.

(b) When Aavailable. (1) Any person interested under a deed, will, written contract, or other writing sconstituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may:

(A) , may hHave determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise decided;, and (B) oObtain a declaration of rights, status, or other legal relations thereunder it. (1) (2) A contract may be construed either before or after it is there has been a breached thereof. IfWhere an insurer has denied that or indicated that it may deny that a contract covers a party’s claim against an insured or indicated it may do so, that party may seek a declaratory judgment construing the contract to cover the claim. (2) (3) Any person interested as or through an executor, administrator, trustee guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, a decedent’s or of the estate of a decedent, an iinfant, insolvent, or person under a legal disability, may have a declaration of rights or legal relations in retospect thereto: (3)

176 (A) to aAscertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (A) or, (B) to dDirect the executors, administrators, or trustees, to do or abstain from doing a nyparticular act in their a fiduciary capacity; or, (C) to dDecideetermine any question arising in the administration of the estate or trust, including a questions of construction of wills and other writings. (C) (4) (4) The enumeration in Rule 57subdivisions (b1), (2) and (3) of this rule does not limit or restrict the exercise of the general powers stated in paragraph Rule 57(a) in any proceeding where declaratory relief is sought, and in which a judgment will terminate the controversy or remove an uncertainty.

[Amended effective July 7/27/, 2000.]

Advisory Committee Notes

A plaintiff may ask for a declaratory judgment either as sole relief or or in addition t or auxiliary to other relief; likewise , and a defendant may similarly counterclaim therefor one. As a result, Thus the court is not limited only to remedial relief for acts already committed or losses already incurred; it may either substitute or add preventive and declaratory relief. It may be sought upon either legal or equitable claims, and the right to a jury trial is fully preserved as in civil actions generally.

Absent extraordinary circumstances, the failure to order separate trials in order to avoid putting the issue of insurance before the a jury deciding which tries liability and damages as between the insured and the injured party will be deemed an abuse of discretion.

177

Rule 58. Entering y of judgment.

Every A judgment musthall be be setated forth on a separate document which bears the titled of “Judgment.” HoweverBut, in the absence of prejudice to a party, a judgment which fully adjudicatinges the claim as to all parties and which has been entered as statedprovided in Miss. R. Civ. P. 79(a) musthall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment musthall be effective only when entered as statprovided in Miss. R. Civ. P. 79(a).

[Amended effective July 7/1/, 2001; amended effective May 5/27/, 2004 to address finality of improperly titled judgment.]

Advisory Committee Historical Note

Effective July 7/1/, 1994, a new Rule 58 was adopted. 632-635 So. 2d XXXII-XXXIII (West Miss. Cases 1994).

[Adopted August 8/21/, 1996.]

Advisory Committee Notes

The “entry” of the judgment is the ministerial notation of the judgment by the clerk of the court pursuandert to Rules 38 and 79(a); however, it is crucial to the effectiveness of the judgment and for measuring time periods ftor appeal and ttohe fileing of various motions.

178

Rule 59. New trials; amendingment aof judgments.

(a) Grounds.

(1) A new trial may be granted to a all or any of the partyies and on all or part of the issues:

(A) (1) iIn a jury n action in which there has been a trial by jury, for any of the reasons for whai ch new trials previously hasve heretofore been granted in an actions at law in Mississippithe courtss; and (B) of Mississippi; and (2) iIn a nonjury n action tried without a jury, for any of the reasons for which a rehearings previously hasve heretofore been granted in a suits in equity in Mississippi the courts. (a) of Mississippi. (2) On a motion for a new trial in a nonjury n action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions, and direct order the entry of a new judgment.

(b) Time for motionTime for Motion. A motion for a new trial musthall be filed not later than ten 10 days after the entry of judgment. (b) (c) Affidavit; time.Time for Serving Affidavits. When a motion for new trial is based upon an affidavit, it must s they shall be filed with the motion. The opposing party has ten 10 days after service to file opposing affidavits. The 10-day , which period may be extended for up to twenty 20 days either by the court for good cause shown or by the parties’ written stipulation. The court may permit allow reply affidavits. (c) (d) On Initiative of By the Ccourt.

(1) Not later than ten 10 days after entry of judgment, the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on a party’s motion of a party. (2) After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. (3) In either case, the court musthall specify in the order the grounds therefor it. (d)

179 (e) Motion to Aalter or Aamend a Jjudgment; time. A motion to alter or amend the judgment musthall be filed not later than ten 10 days after entry of the judgment. (e) [Amended effective July 7/1/, 1997.]

Advisory Committee Historical Note

Effective July 7/1/, 1997, Rule 59(b), (c) and (e) were amended to clarify that motions for a new trial and accompanying affidavits, and that motions to alter or amend a judgment, must be filed not later thatn ten 10 days after entry of judgment. 689 So. 2d XLIX (West Miss. Cases).

Advisory Committee Notes

In In a jury trials, the trial court may grant a new trial based upon: (1) a prejudicial error by the court in the admittssiong or excludsiong of evidence; (2), an error in the jury instructions; (3), prejudicial comments by the judge or attorneys; (4), a finding that the verdict is against the great weight of the evidence; (5), a finding that the jury’s verdict is the result of passion, prejudice, or bias; or (6), or any grounds upon which new trials were granted in actions at law prior to the adoption of these rules. A trial court’s ruling on a motion for new trial is reviewed for abuse of discretion.

Although “[i]t is clearly better practice to include all potential assignments of error in a motion for new trial, . . . …wwhen the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the omission or exclusion of evidence, [the appellate court] may consider it regardless of whether it was raised in the motion for new trial.” See Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).

The rule does not authorize a motion for reconsideration after entry of judgment. If a motion is mislabeled as a motion for reconsideration and was filed within ten 10 days after the entry of judgment, the trial court should treat such the motion as a post-trial motion to alter or amend the judgment pursuandert to Miss. R. Civ. P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So. 2d 262, 265 (Miss. 2001). A party moving to alter or amend the judgment “must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law to prevent manifest injustice.” See Brooks v. Robertson, 882 So. 2d 229, 233 (Miss. 2004). A motion to alter or amend the judgment is within the trial court’s discretion. When a motion is mislabeled as a motion for reconsideration, does not state that it was brought pursuandert

180 to Rule 59, and was filed more than ten 10 days after the entry of the final judgment in the case, the trial court should treat sucthe motion as one for relief from a judgment pursuandert to Rule 60(b). See Carlisle v. Allen, 40 So. 3d 1252, 1260 (Miss. 2010).

A motion for new trial or a motion to alter or amend the judgment made pursuandert to Miss. R. Civ. P. 59 must be filed within 10 days after entry of the judgment. The trial court has no authority or discretion to extend the 10-day time period. Miss. R. Civ. P. 6(b). A timely Rule 59 motion for a new trial or to alter or amend the judgment tolls the time in which to for filinge a notice of appeal; the thirty30-day time period in which to for filing e a notice of appeal runs from the entry of the order disposing of the post-trial motion. Miss. R. App. P. 4(c). If not filed within ten 10 days after entry of the judgment, a Rule 59 motion for a new trial, to alter or amend the judgment, or for reconsideration does not toll the time period in which to for filing e a notice of appeal. Miss. R. App. P. 4(d); but see Wilburn v. Wilburn, 991 So. 2d 1185, 1190-191 (Miss. 2008) (Ccourt refused to address the timeliness of appellant’s notice of appeal even though appellant filed a motion to reconsider more than ten 10 days after entry of judgment and did not file a notice of appeal within thirty 30 days after the entry of judgment and, noteding that the appellee did not object to the untimely motion to reconsider.)

A Rule 60(b) motion for relief from a final judgment pursuant to M.R.C.P. 60(b) is different from a a Rule 59(e) motion to alter or amend the judgment pursuant to M.R.C.P. 59(e) in that a change in the law after entry of final judgment is not an “extraordinary or compelling circumstance” warranting relief pursuandert to Miss. R. Civ. P. 60(b). See Regan v. S. Cent. Reg’l Med. Ctr., 47 So. 3d 651, 655 (Miss. 2010). Relief pursuandert to Rule 60(b)(6) is reserved for cases involving “exceptional and compelling circumstances” in light of the desire to achieve finality in litigation. See id.

181 Rule 60. Relief from judgment or order.

(a) Clerical Mmistakes. On its own or a party’s motion, the court may correct a Cclerical mistakes or error arising from oversight or omission in a judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time after on its own initiative or on the motion of any party and after such notice , if ordered and any, as the court orders up until the time the court clerk transmits the record is transmitted by the clerk of the trial court to the appellate court, and the action remains pending in the appellate courttherein. Otherwise, Thereafter, a such mistake or errors may be so corrected only with on the appellate court’s orderleave of the appellate court..

(b) Mistakes, other basis for relief; time for motion; Inadvertence; Newly Discovered Evidence; Fraud, etc.

(1) On a motion and upon such just terms as are just, the court may relieve a party or party’s or his legal representative from a final judgment, order, or proceeding for the following reasons: (b) (1)(A) An adverse party’s ffraud, misrepresentation, or other misconduct of an adverse party; (2)(B) aAccident or mistake; (3)(C) nNewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (4)(D) tThe judgment is void; (E) tThe judgment has been satisfied, released, or discharged;, or (F) aA prior judgment upon which the judgment it is based has been reversed or otherwise vacated; (5)(G) , or iIt is no longer equitable that the judgment should have prospective application; or (H) aAny other reason justifying relief from the judgment. (6) (2) Time. The motion musthall be made filed within a reasonable time. For, and for reasons in Rule 60(b)(1)(A), (2B) and (3C), the motion must not be filed not more than six months after the judgment, order, or proceeding was entered or taken.

(3) Finality. A Rule 60 motion under this subdivision does not affect the finality of a judgment or suspend its operation.

182 (4) Leave from appellate court. Leave to make the motion need does not need to be obtained from the appellate court unless the record has been transmitted to the appellate court aand the action remains pending therein it.

(5) Independent action. This rule does not limit the a court’s power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding , or to set aside a judgment for fraud upon the court. (6) Writs abolished. Writs of coram nobis, coram vobis, audita querela, and bills of review, and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment musthall be by motion as prescribed in these rules or by an independent action and not otherwise.

(c) (c) Reconsideration of transfer order. An order transferring a case to another court will become effective ten (10) days following the entry date of entry of the order. Any motion for reconsideration of the transfer order must be filed prior to the expiration of the 10-day period, for and which no extensions may be granted.

(1) If a motion for reconsideration is filed, all proceedings will be stayed until such time as the motion is decided. But ruled upon; however, if the transferor court fails to rule on the motion for reconsideration within thirty (30) days of the date of ffiling, the motion musthall be deemed denied.

[Amended effective July 7/1/, 2008, to provide for reconsideration of transfer orders entered on or after that date.]

Advisory Committee Notes

The trial court may grant relief from a judgment or order to correct clerical errors pursuantder to Rule 60(a), or for other reasons enumerated in Rule 60(b). The trial court may correct a clerical errors at any time. , bBut if the case is on appeal and the trial court clerk has transmitted the record to the appellate court, the trial court must obtain leave from the appellate court before correcting any clerical mistakes. A Mmotions for relief from a judgment or order based upon one of the reasons enumerated in Rule 60(b) must be made filed within a reasonable time, and in some cases, not more than six months after the judgment or order was entered.

Rule 60(a) only authorizes the trial court to correct clerical errors; it does not authorize any changes to the judgment that are substantive and change the effect or intent of the original judgment. See Whitney Nat’l Bank v. Smith, 613 So. 2d 312, 316 (Miss. 1993).

183 When ruling upon a Rule 60(b) motion, the trial court should balance the litigant’s interest in a resolution on the merits of the motion with the desire to achieve finality in litigation. See Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984). Rule 60(b) motions that attempt to merely relitigate the case should be denied. Id.

A party moving for Rule 60(b)(1)(A) relief pursuant to Rule 60(b)(1) based upon fraud, misrepresentation or other misconduct of an adverse party must do so within six months after entry of the judgment and must prove the fraud, misrepresentation, or other misconduct by clear and convincing evidence. See Stringfellowid. , 451 So. 2d at 221. Relief from a final judgment based upon fraud upon the court may be sought pursuander t to Rule 60(b)(56). See In re Estate of Pearson, 25 So. 3d 392, 395 (Miss. Ct. App. 2009). “[R]elief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Id. (citing Wilson v. Johns- Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)).

A party moving for Rule 60(b)(1)(B) relief pursuant to Rule 60(b)(2) based upon an accident or mistake must do so within six months after entry of the judgment. A Rule 60(b)(21)(B) motion will only be granted upon a showing of exceptional circumstances. Generally, “neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” See Stringfellow, 451 So. 2d at 221. A party may move to set aside a default judgment pursuandert to Rule 60(b)(21)(B). When ruling on tsuche a motion, the trial court may consider: (1) whether the default was caused by excusable neglect or a bona fide technical error; (2) whether the claimant will suffer prejudice if the default judgment is set aside; and (3) whether the defaulting party has a colorable defense to the merits. See State Highway Comm’n of Miss. v. Hyman, 592 So. 2d 952, 955 (Miss. 1991). A Mmovant must show the specific facts of the meritorious defenses by affidavit or other sworn form of evidence. Amer.ican Cable Corp. v. Trilogy Commc’uniations, Inc., 754 So. 2d 545 (Miss. 2000).

A party moving for Rule 60(b)(1)(C) relief pursuant to Rule 60(b)(3) based upon newly discovered evidence must do so within six months after entry of the judgment. To justify relief, the evidence: (i1) must have been in existence at the time of trial; (ii2) could not have been discovered by due diligence prior to the expiration of the ten10-day period in which for filing a Rule 59 motion for new trial could have been filed; (iii3) must be material and not cumulative; and (iv4) must be of a such character that will as to probably produce a different result in the event of a new trial or be of such character as to require a different ruling on summary judgment. See January v. Barnes, 621 So. 2d 915, 920 (Miss. 1992).

184 A party may move to set aside a void judgment pursuandert to Rule 60(b)(41)(D) more than six months after entry of the judgment if the delay in moving for relief was reasonable. See Ladner v. Logan, 857 So. 2d 764, 770 (Miss. 2003). A judgment is void if the trial court lacked jurisdiction over the subject matter or the parties or acted in a manner inconsistent with due process of law. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986).

A party may move to set aside the judgment pursuandert to Rule 60(b)(51)(E), (F), or (G) if the judgment has been satisfied, released or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated. Rule 60(b)(51)(E), (F), or (G), however, “does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.” See Regan v. S. Cent. Reg’l Med. Ctr., 47 So. 3d 651, 655 (Miss. 2010) (former Rule 60(b)(5)).

A party may move to set aside the judgment pursuander t to Rule 60(b)(61)(H) if there are “extraordinary and compelling” circumstances justifying relief. When ruling on a Rule 60(b)(16)(H) motion, the trial court may consider the following factors: “(1) [t]hat final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made filed within a reasonable time; (5) [omitted factor relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits-the movant had a fair opportunity to present [a]his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.” See Carpenter v. Berry, 58 So. 3d 1158, 1162 (Miss. 2011).

The trial court has discretion to grant or deny a Rule 60(b) motion, unless the judgment is void—, in which case the court is required to set it aside the judgment. See Sartain v. White, 588 So. 2d 204, 211 (Miss. 1991).

Motions for relief under this rule are filed in the original action , rather than as an independent action.

Rule 60 motions for relief from a judgment filed no later than ten 10 days after entry of judgment toll the time period for filing an in which an appeal may be taken. Miss. R. App. P. 4(d). Rule 60 motions filed more than ten 10 days after entry of judgment do not toll the time period in for filing an which an appeal may be taken. A Rule 60(b) motion for relief from a judgment does not automatically stay execution upon the judgment. The trial court

185 has discretion to stay execution upon the judgment while a Rule 60(b) motion is pending. Miss. R. Civ. P. 62(b).

186

Rule 61. Harmlesss error.

(a) Not a basis for error; exception. (1) Unless refusing to do so appears inconsistent with substantial justice, none of the following is a basis for granting a new trial; setting aside a verdict; or vacating, modifying, or otherwise disturbing a judgment or order:

(A) AnNo error in either the admittingssion or the excludsiong of evidence; (B) An error and no error in any ruling or order; or (C) or in aAnything done or omitted by the court or by an y of the party. ies is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. (2) At every stage, Tthe court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect a party’s the substantial rights of the parties.

187

188 Rule 62. Staying of proceedings to enforce a judgment.

(a) Automatic Sstay; Eexceptions. Except as stated herein this rule, or as otherwise provideda by statute, or court by order of the court for good cause shown, no execution shall may be issued upon a judgment, and no enforcement nor shall proceedings may be taken for its enforcement until the expiration of 10ten days after the later of iit is entered or s entry or the disposition of a motion for a new trial is disposed of—whichever is later.

(1) Injunction; receivership.

(A) But Uunless otherwise ordered by the court orders otherwise, an interlocutory or final judgment in an action for an injunction or in a receivership action musthall not be stayed after it is entered, even if an appeal is taken.during the period after its entry and until an appeal is taken or during the pendency of an appeal. (a)(B) Rule 62(c) The provisions of subdivision (c) of this rule governs the suspending, modifying, restoring, or granting of an injunction during if the pendency of an appeal is taken..

(b) Stay on Mmotion. In its discretion and on such proper conditions for the adverse party’s security of the adverse party as are proper, the a court may stay the execution of a judgment or enforcement any proceedings to enforce a judgment pending the disposition of the following:

(1) aA Rule 59 motion to alter or amend a judgment; (2) made pursuant to Rule 59, or of aA Rule 60(b) motion for relief from a judgment or order order; (3) A Rule 50(b) made pursuant to Rule 60(b), or of a motion to set aside a verdict made pursuant to Rule 50(b); , or (4) of aA Rule 52(b) motion for to amendment to the or make additional findings or for additional finding made pursuant to Rule 52(b). (b) (c) Injunction Ppending Aappeal. OWhen an interlocutory or final judgment has been rendered granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction while the judgment is appealed during the pendency of an appeal from such judgment upon such terms as tfor bond or otherwise as it considers proper terms ftor the secureit y of the adverse party’s rights of the adverse party. The court’s power of the court to issumake such an order is not terminated by the taking of the appealing.

189 (c) (d) Stay Upon Aappeal. Unless Rule 62(a) states otherwise, Wwhen an appeal is taken, the appellant may obtain a stay if and , when and as authorized by statute or otherwise, may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. (d) (e) [Omitted]. (e) (f) Stay in Ffavor of the State of Mississippi or a state Aagency Thereof. A court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal When an appeal is taken by the State of Mississippi, its officers, or an officer or its agencies y thereof or on an appeal by directed ion of by a ny department of the state government of same and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required of the appellant. (g) Appellate court’s Ppower of Appellate Court Nnot Llimited. The provisions in this rRule 62 does not limit the power of an appellate court, judge, or justice y power of an appellate court or of a judge or justice thereof to:

(1) sStay proceedings during while an appeal is pending; (2) the pendency of an appeal or to sSuspend, modify, restore, or grant an injunction while an appeal is pending; during the pendency of an appeal or (3) to mIssueake any appropriate order appropriate to preserve the status quo or the the effectiveness of the judgment subsequently to be entered. (g) (h) Stay involving of Judgment Upon Mmultiple Cclaims or as to Multiple Pparties. When aA court may stay enforcement of has ordered a Rule 54(b) final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until it enters the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof the stayed judgment to the party in whose favor the judgmentit wais entered. (h) [Amended effective July 1, 1997.]

Advisory Committee Historical Note

Effective July 7/1/, 1997, Rule 62(a) was amended to clarify that the stay of enforcement of a judgment expires ten 10 days after the later of the entry of the judgment or the disposition of a motion for a new trial. , and Rule 62(b) was amended to state that a court may stay the execution of or any proceedings to enforce a judgment pending the

190 disposition of a Rule 50(b) motion to set aside a verdict made pursuant to Rule 50(b). 689- 692 So. 2d XLIX (West Miss. Cas. 1997).

Advisory Committee Notes

Federal Rule of Civil Procedure 60Subdivision (e) of the Federal Rules applies to stays in favor of the United States and ; it is omitted from the Mississippi Rules of Civil Procedure.

191

Rule 63. Disability of a jJudge’s inability to proceed.

(a) During Ttrial. If for any reason the presiding judge before whom an action has been commenced is unable to proceed with the trial, another judge regularly sitting in or assigned under law to the court in where ich the action is pending may proceed with and finish the trial upon after certifying in the record that he has familiarity zed himself with the trial record of the trial;. bBut if such other judge isunable to certify adequate familiarity with the record, satisfied that he cannot adequately familiarize himself with the record,the other judge may exercise he may in his discretion to grant a new trial. (a) (b) After Vverdict or or Ffindings. If for any reason the presiding judge before whom an action has been tried is unable to perform the court duties to be performed by the court after a verdict is returned, or after the hearing of a nonjury action, then any other judge regularly sitting in or assigned under law to the trial court in which the action was tried may perform those duties. B; but if unable such other judge is satisfied that he cannot to perform those duties, the other judge may exercise in his discretion grant a new trial.

192 CHAPTER SECTION VIII8. PROVISIONAL AND FINAL REMEDIES; AND SPECIAL PROCEEDINGS

Rule 64. Seizing a ure of person or property.

After At the commencing an action and during itement of and during the course of an action, every all remedy ies providing for the seizing ure ofa person or property tfor the purpose of securing satisfy action of a potential the judgment ultimately to be entered in the action are is available according to under the circumstances and in the manner provided by law, . These remedies includinge attachment, replevin, claim and delivery, sequestration, and other corresponding or equivalent remlediefs regardless of the designation and , however designated and regardless of whether the remedy is ancillary to an action or must be obtained by an independent action. [Amended effective September 9/1/, 1987.]

Advisory Committee Historical Note

Effective September 9/1/, 1987, Rule 64 was amended by deleting “garnishment” as one aof the included prejudgment remedies. y included in the provisions of the Rule. 508- 511 So. 2d XXIX (West Miss. Cas. 1987).

193 Rule 65. Injunctions.

(a) (a) Preliminary Iinjunction.

(1) Notice. A No preliminary injunction must hall not be issued without notice to the adverse party. (2) Consolidationg of Hhearing Wwith Ttrial on Mmerits. Before or after thea commencement of the hearing on application fon r a motion for preliminary injunction, the court may order advance the the trial of the action on the merits to be advanced and consolidate it d with the hearing of the application. Even when this consolidation is not ordered, if admissible at trial, any evidence received upon a motion application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the trial record and does not on the trial and need tnot be repeated upon at trial. Rule 65This subdivision (a)(2) musthall be so construed and applied as to preserve save to thea party’sies any rights tothey may have to trial by a jury trial. (2) (b) Temporary Rrestraining Oorder; Nnotice; Hhearing; Dduration. (1) Without notice. A temporary restraining order may be granted , without notice to the adverse party or or his attorney if:

(A) (1) iIt clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant movant before the adverse party or or his attorney can be heard in opposition;, and (B) (2) tThe movantapplicant’s attorney certifies to the court in writing:

(i) the eEfforts, if any, which have been made to give the notice; and r (ii) eReasons supporting the movant’is claim that notice should not be required.

(C) Every temporary restraining order granted without notice must:

(i) hall State the be endorsed with the date and time it is hour of issuanced; shall (ii) bBe filed forthwith in the clerk’s office and entered in ofthe record; (iii) shall dDefine the injury; (iv) and sState why it the injury is irreparable; (v) and State why the order was granted without notice; and

194 (vi) shall eExpire after entered by its terms within a such time the court specifiesafter entry, not to exceed ten 10 days. , as the court fixes (except in domestic relations cases, when the ten- day limitation shall not apply), (D) Exceptions to 10-day limit. The 10-day limit in Rule 65(b)(1)(C)(vi) does not apply in domestic relations cases. It also does not apply if in the temporary restraining order the court states reasons for extending the 10- day limitation and:

(i) unless wWithin the specified time so fixed the order for good cause shown, the court is extends the temporary restraining order ed for a like period; or unless (ii) tThe party against whom the order is directed consents to hat it may be extending it ed for a longer period. The reasons for the extension shall be stated in the order.. (b) (2) Hearing. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction must hall be set down for hearing at the earliest possible time and take precedence over all matters except older matters ones of the same character.

(A) When At the motion comes on for hearing, the party who obtained the temporary restraining order shall must proceed with the application motion for a preliminary injunction or otherwise, and, if he does not do so, the court musthall dissolve the temporary restraining order.

(3) On notice of two days to a party who obtained a temporary restraining order or less if the court orders a shorter period, On two days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move to dissolve or modify the temporary restraining order. its dissolution or modification and in that event If so, the court musthall proceed to hear and determine decide tsuche motion as expeditiously as the ends of justice require.

(c) Security. No restraining order or preliminary injunction musthall issue unless the movant except upon the gives ing of security by the applicant, in a such sum as the court deems proper, for the paying ment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

195 (1) But the following are not required to give security:

(A) ; provided, however, no such security shall be required of tThe State of Mississippi; or o (B) f aAn state officer or agency.

(2) In addition, a court has thereof, and provided further, in the discretion of the court, security may not be required in domestic relations actions to waive security.

(3) . The provisions of Rule 65.1 apples y to a surety upon a bond or undertaking under this rule. (c) (d) Injunction or restraining order: Fform; and Sscope of Injunction or Restraining Order. (d) (1) Restraining order. (A) Form. An Every order that grants ing a restraining order musthall describe in reasonable detail— and not merely refer by reference to the complaint or other document— the act or acts sought to be restrained.

(B) Scope. A restraining order binds only the following:

(i) A party ; it is binding only upon the parties to the action; (ii) A party’s , their officers, agents, servants, employees, and attorneys;, and (iii) A upon those ppersons who acts in active concert or participates ion with them and who receives actual notice of the order by personal service or otherwise. (1) (2) Injunction.

(A) Form. An Every order that grantsing an injunction must:

(i) hall sSetate forth the reasons for its issuaingce it; (ii) shallbBe specific in terms; andshall (iii) dDescribe in reasonable detail —not merely refer to the complaint or other document—and not by reference to the complaint or other document the act or acts sought to be restrained.

196 (B) Scope. An injunction binds only the following: ; and is binding only upon t (i) A party to the action; (ii) A party’s officer, agent, servant, employee, and attorney; and (iii) A person who acts in concert or participates with them and who receives actual notice of the order by personal service or otherwise.

he parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) (e) Jurisdiction Uunaffected. This rule does not change Iinjunctive powers previously heretofore vested in the circuit and chancery courts remain unchanged by this rule.

Advisory Committee Notes

Rule 65 authorizes a party ies to seek temporary restraining orders (TROs) and preliminary injunctions in civil cases in seeking which permanent injunctive or other relief or other relief is being sought. AA party may move for a TRO, preliminary injunction, or both , and in appropriate circumstances, obtain a TRO and/or a preliminary injunction relief before the merits of the case are resolved.

In Ggenerally, the purpose of a TRO is to provide temporary and short- term relief until further additional action can be taken in the case. To obtain a TRO without notice to the adverse party, the party seeking relief must show (1), by affidavit or verified complaint, (2) that it the party will suffer immediate and irreparable injury before the adverse party can be heard in opposition. In addition, that party’s e attorney for the party seeking the TRO must certify to the court in writing (1) the efforts made to give the adverse party notice and (2) the reasons why the notice to the adverse party should not be required.

If aA TRO is granted without notice , it must contain the information required by Rule 65(b)(1). and In addition, it must expire by its own terms, not more than 10 days after its entered ry, except in domestic relations cases. Before its expiration, The court may extend a TRO may be extended by the court for a like period (1) before it expires (2) if the restrained party consents or (3) the court extends the TRO for good cause shown.

The purpose of a preliminary injunction is to provide injunctive relief until the merits of the case are resolved. Preliminary injunctions cannot be granted without notice.

197

A party who moves ing for preliminary injunctive relief pursuaccording nt to Rule 65(a) must demonstrate that “(i) there exists a substantial likelihood that the [movant] will prevail on the merits; (ii) the injunction is necessary to prevent irreparable harm; (iii) the threatened injury to the [movant] outweighs the harm an injunction might do to the [opposing party]; and (iv) granting a preliminary injunction is consistent with the public interest.” See Littleton v. McAdams, 60 So. 3d 169, 171 (Miss. 2011). A Mmotions for preliminary injunctions are falls within the trial court’s discretion. See City of Durant v. Humphreys County Mem’l Hosp., 587 So. 2d 244, 250 (Miss. 1991).

Rule 65 (c) requires tha movant who seeks a TRO or preliminary injunction to give at proper security be given by the movant obtaining a TRO or preliminary injunction so that proper to pay ment for costs, damages, and reasonable attorneys’ fees may be made to the restrained party in the event it is determined decided that such party was wrongfully enjoined or restrained. Such sSecurity is not required from the State of Mississippi and may be waived in domestic relations cases. Section 11-13-37 of the Mississippi Code of 1972 Annotated Mississippi Code Annotated §11-13-37 providescodifies an independent statutory basis to for awarding damages and attorneys’ fees if an injunction is dissolved.upon dissolution of an injunction.

County courts have some authority to issue injunctive relief. See Miss. Code Ann. § 9- 9-21 (county court must “have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity” where the amount in controversy does not exceed $200K exclusive of interest and costs); see also id. § 99-9-23 (county judge must “have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases” pending in or within county court’s jurisdiction). But cf. id. (county judge must “not have original power to issue writs of injunction, or other remedial writs in equity or in law” unless within the county court’s jurisdiction as stated in the same provision). Mississippi Code Annotated §9-9-21 provides that county courts “shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the things in controversy shall not exceeds…the sum of …$200,000.00.” Mississippi Code Annotated §99-9-23 provides that county courts “shall have the power to order the issuances of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, [the county court].”

Section 9-9-23, however, further provides that county courts “shall not have original power to issue writs of injunction, or other remedial writs of equity or in law except in those cases hereinabove specified as being within [the court’s] jurisdiction.” The statutes have been interpreted as authorizinge a county courts to issue an injunctions in cases falling

198 within the concurrent jurisdiction of the chancery and county court. See, e.g., Lee v. Coahoma Opportunities, Inc., 485 So. 2d 293, 294 (Miss. 1986) (citing Miss. Code Ann.id. § 9-9-21(1)) (stating “A “claim for specific performance of a contract of employment plus attendant injunctive relief is well within the jurisdiction of the county court on its equity side”); Swan v. Hill, 855 So. 2d 459, 462-63 (Miss. Ct. App. 2003) (holding that the county court had jurisdiction to issue injunctive relief in a case involving property rights).

199 65.1 sSecurity: proceedings against surety.ies

Whenever these rules require or permit allow a party to the give ing of security by a party, and security is given in the form of a bond, or stipulation, or other undertaking with one or more sureties, each surety submits himself to the court’s jurisdiction of the court and irrevocably appoints the court clerk of the court as an his agent upon whom any papers affecting the liability on the bond or undertaking may be served. The surety’s His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motioit n as the court orders prescribes may be served on the court clerk of the court, who musthall forthwith mail copies to the suretyiess if the ir addresses are is known.

200 Rule 66. Receiver.s

An action where in a receiver has been appointed musthall not be dismissed unless the court orders otherwiseexcept by order of the court. In all other respects, these rules govern the an action seeking to appoint in which the appointment of a receiver or one by or against is sought or which is brought by or against a receiver is governed by these rules.

201 Rule 67. Deposit in court.

In any action partly or wholly seeking a money in which any part of the relief sought is judgment for a sum of money or something else that can be the disposition of any other thingdelivered, capable of delivery, a party, upon notice to every all other parties y, and by leave of court, a party may deposit all or part of the sum or thing with the court all or any part of such sum or thing.

The judge may order Where money is paid into court as to abida e the result of any legal proceeding, the judge may order it to be deposited at interest in a federally insured bank or savings and loan association authorized to receive public funds, to the credit of the court in the action or proceeding in whichwhere the money was paid. The deposited money so deposited plus any interest musthall be paid only upon the court clerk’s check that is of the clerk of the court, attached annexed wto a ith its certified court order for the payment and that is made payable to , and in favor of the person to whom the stated in the order directs the payment to be made.

202 Rule 68. Offer of judgment.

(a) Time.

(A) Offer. At any time more than least fifteen 15 days before the trial begins, a party defending against a claim may serve an adverse party with upon the adverse party an offer to allow judgment on specified terms to be taken against him for the money or property or to the effect specified in his offer, with accrued costs then accrued. (B) Acceptance. Within 10 days after service, If within ten days after the service of the offer the adverse party may serves written notice that that the offer is accepted.

(b) Effect.

(1) Accepted. If the offer is accepted, , eeither party may then file the offer, and notice of acceptance, and together with proof of service. The court thereof and thereupon the court musthall then enter judgment. (2) Not accepted. If theAn offer is not accepted, it musthall be deemed withdrawn.

(A) Evidence of the offer or its withdrawal and evidence thereof is not admissible except in a proceeding to determine decide costs. (B) If the adverse party obtains a judgment that is finally obtained by the offeree is not more favorable than the offer, the offeree adverse party must pay the costs incurred after the offer was filedmaking of the offer. (C) The fact that an offer is made filed but not accepted does not preclude a subsequent offer.

(3) Effect of a liable party’s offer. When a verdict, order, or judgment decides the one party is liabile ity of one party to another has been determined by verdict, order or judgment, but the amount or extent of the liability remains undecided until to be determined by further additional proceedings, the liable party adjudged liable may make an offer of judgment.

(A) The liable party’s offer , which musthall have the same effect as an offer made filed before trial if it is served within a reasonable time , noat leasts than 10ten days , prior to the the commencement of hearing to determine decide the amount or extent of liability.

203 Rule 69. Execution.

(a) Enforcing a ement of Jjudgment. Statutory procedures govern the following:

(1) PProcess to enforce a money judgment; judgment for the payment of money shall be by such procedures as are provided by statute. T (2) hThe procedure on execution , in a proceedings supplementary to and in aid of a judgment; , and (3) The procedure on execution in a proceedings on and in aid of execution, shall be as provided by statute.. (a) (b) Examination by Jjudgment Ccreditor. To aid in the satisfyactiong of a judgment of at least more than $100one hundred dollars, a the judgment creditor may examine the judgment debtor or any other person—including the , including thedebtor’s or person’s books, papers, or documents— of same, upon any nonprivileged matter not privileged relating to the debtor’s property. (b) (1) The judgment creditor may examine the judgment debtor or other person:

(A) iIn open court according to s provided by statute; or (B) may uUtilize the discovery procedures stated in Rules 26 through 37 hereof.

204 Rule 70. Judgment for specific acts; vesting title.

(a) Specific Aacts. If a judgment directs orders a party to execute a conveyance of land, or to deliver a deeds or other documents, or to perform any other specific act, and the party fails to comply within the specified time specified, the court may direct order the act to be done by some other person it appoints.

(1) The court may order the disobedient party to pay costs of doing so. (a)(2) at the cost of the disobedient party by some other person appointed by the court and the act when soThe completed act done has the same like effect as if the disobedient party had done it by the party.

(b) Divesting ment of Ttitle. If real or personal property is within the State of Mississippi, instead of ordering a the court in lieu of directing a conveyance, the court thereof may enter a judgment divesting a party’s the title of any party and vesting it in others.

(b)(1) The ; such judgment has the effect of a legally executed conveyance executed in due form of law.

(c) Delivering y of Ppossession. When any order or judgment is for the delivering y of possession, a certified copy of the judgment or order isshall be sufficient authority for the sheriff of the county in where ich the property is located to seize same and deliver it to the party entitled to its possession.

(d) Contempt. In proper cases, Tthe court may also in proper cases adjudgefind the party in contempt. (d) Advisory Committee Notes

Rule 70 applies only after a judgment is entered; Rules 6 and 65 provide apply to prejudgment remedies. for remedies prior to judgment. Rule 70 applies only if a judgment directs order a party to execute a conveyance of land, or to deliver a deed s or other documents, or to perform only other specific acts, and the party has fails ed to comply within the time specified in the judgment..

205 Rule 71. Process for in behalf of and against nonparty. persons not parties

Other than a party’s creditor in a divorce proceeding, Wwhen the court issues an order is made in favor of a nonpartyperson who is not a party to the action, other than a creditor of a party to a divorce proceeding, the nonparty may enforce obedience to the order by the same process as if he were a party. ; and wWhen obedience to an order may be lawfully enforced against a nonpartyperson who is not a party, the nonparty is liable to the same process for enforcing obedience to the order as if he were a party.

Advisory Committee Notes

A court order may be enforced by a non-partynonparty if the non-partynonparty shares an identity of interest with the prevailing party. For example, in a case concerning title to property, a prevailing party’s an assignee of a prevailing party in a case concerning title to property is entitled to enforce a judgment in the same manner as the party– assignor. LikewiseSimilarly, a judgment may be against a party’s person who is the successor in interest to a party, but the court must first obtain personal jurisdiction on the successor in interest. See, e.g., Mansour v. Charmax Ind., Inc., 680 So. 2d 852, 855 (Miss. 1996) (holding that service of process is requirement to personal jurisdiction before Rule 71 can be applied); Libutti v. U.S., 178 F.3d 114, 124-25 (2d Cir. 1999) (holding that the court must have personal jurisdiction over the non-partynonparty against whom the judgment is enforced).

206 Rule 71aA. Eminent domain. [Reserved].

207 CHAPTERSECTION IX9. APPEALS

Rules 72 to 76. [Omitted].

208 CHAPTER SECTION X10. COURTS AND CLERKS

Rule 77. Conducting businessurts; and clerk’s authoritys; notice of order or judgment.

(a) Court Aalways Oopen. The A courts musthall be deemed always be considered open for the purposes of filing any pleading or other proper paper; , of issuing and returning process; , and of making and directing all interlocutory motions, orders, and rules. (a) (b) Place for Ttrials and other proceedings and Hearings; Orders in Chambers.

(1) Trial. Unless a statute provides otherwise, aAll trials upon the merits musthall be conducted in open court, except as otherwise provided by statutet. (2) Other acts and proceedings. Within the judicial district, outside of it, or at another place in Mississippi, a judge may All other acts and conduct or proceedings other than trial may be done or conducted by a judge in chambers.

(A) The court clerk or other official does not have to be present. (B) , without the attendance of the clerk or other court officials and at any place within the state either within or without the district; Bbut ano hearing shall be conducted outside the district must not be conducted without the consent of all affected parties affected thereby. (b) (c) Clerk’s office hours; orders.

(1) Clerk’s office hours. ’s Office and Orders by Clerk. During business hours, Tthe clerk’s office must be open each day except Saturday, Sunday, and a legal holiday, and the clerk or deputy clerk must be present. (2) Clerk’s orders.

(A) The court clerk may:

(i) with the clerk or a deputy clerk in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. All motions and applications to the clerk for iIssue ing process; (ii) , for iIssuessuing process to enforce and execute a judgments; (iii) , for eEntering a defaults; and

209 (iv) Act on another matter that does not , and for other proceedings which do not require the court’s action.

(B) allowance or order of the court are grantable of course by the clerk; bBut the court may suspend, alter, or rescind the is clerk’s action may be suspended or altered or rescinded by the court for upon cause shown. (c) (d) Notice of Oorders or Jjudgments.

(1) Immediately after entering an order or judgment, the clerk Immediately must: (A) upon the entry of an order or judgment the clerk shall sServe a notice of the entry of it according to in the manner provided for in Rule 5 upon each party who is not in default for failing ure to appear; and (B) , and shall Record mservice ake a note oin the docket of the service.

(2) Any party may also in addition serve a notice that an order or judgment has been entered according to of such entry in the manner provided in Rule 5 for the service of papers.

(3) Unless the Mississippi Rules of Appellate Procedure state otherwise, Lthe clerk’s failure to serve ack of notice an order or judgment has been entered does not of the entry by the clerk does not affect the time to appeal, , nor relieve a party’s failure to appeal within the allowed time, , nor authorize the court to do so. (d) relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure. [Amended effective July 7/1/, 1997.]

Advisory Committee Historical Note

Effective July 7/1/, 1997, Rule 77(d) was amended to allow parties to for serve ice of notices that an order or judgment has been entered of the entry of orders and judgments by parties. 689-692 So. 2d LXII (West Miss. Cas. 1997.) Effective February 2/1/, 1990, Rule 77 was amended by adding subsection Rule 77(d), which requires ing the court clerk of the court to give notice an order or judgment has been of the entered y of orders and judgments to the interested parties. 553-556 So. 2d XLII (West Miss. Cas. 1990).

Advisory Committee Notes

210 Under Rule 77(a), provides that the courts musthall be deemed always open for the purpose of filing papers; and issuing and returning process; and making motions and orders. This does not mean that the clerk’s office of the clerk must be physically open at all hours or that paper can be the filed ing of papers can be effected by leaving them in a closed or vacant office. Under Rule 5(e)(1), papers may be filed out of business hours by delivering them to the clerk or to the judge if he or she permitsallows. See Miss. Const. art. 3, § § 24 (all courts “shall be open”).

Rule 77(b) requires that the a trial on the merits to “all trials upon the merits” be conducted in “open court”; all other acts or proceedings may be done or conducted by a judge in chambers everywhere in the state regardless if the clerk or other “in chambers,” without the necessity of the attendance of the clerk or other court official attendsnd at any place within the state. HoweverBut , no hearing, other than one heard ex parte, wishall be conducted outside the district without the consent of all parties affected partiesaffected thereby. See Corporate Mgmt., Inc. v. Greene Rural Health Ctr. Bd. of Trustees, 47 So. 3d 142, 146 (Miss. 2010).

Rule 77(d) requires that the clerk to provide a copy ies of all orders and judgments , immediately upon their entry, to all parties who are not in default for failure to appear immediately when entered.. Under Miss. R. App. P. 4(h), provides that a party who did not receive notice of a entry of a judgment or order from the clerk or any party within 21 days of its entry may move the trial court to reopen the time for appeal.

Rule 77(d) gives a prevailing party who wants to ensure that the time for appeal is not reopened pursuant under to Miss. R. App. P. 4(h), the opportunity to serve notice a judgment or order has been of entered y of the judgment or order upon on opposing parties according to in the manner provided in Rule 5. Although a prevailing party ies may take the initiative to assure that their an adversary ies receives effective notice, the clerk retains the duty to give notice a judgment or order has been of enteredy of judgments and orders.

211

Rule 78. Motion practice.

(a) Regular schedule.

(1) Each court musthall establish procedures for the prompt conducting dispatch of business promptly, including for hearing and deciding a motion that requires notice. (2) But regardless of time or place, , at which motions requiring notice and hearing may be heard and disposed of; but the judge— at any time or place without notice or and on such notice the court considers reasonable—, if any, as he considers reasonable may issue an make orders for the advancingement, conducting, and hearing an of actions.

(b) Submitting on briefs. To expedite its business, the court by rule or order may make provision by rule or order for the allow a submitted motion to be decided submission and determination of motions without an oral hearing upon brief written statements of support reasons in support and opposition.

[Amended effective March 3/1/, 1989; amended effective April 4/17/, 2003 to allow the a courts, by rule to provide for decidetermination of a motions seeking final judgment without oral argument.]

Advisory Committee Historical Note

Effective March 3/1/, 1989, Rule 78 was amended by changing its title to “MOTION PRACTICE” and by abrogating provisions for local rules. 536-538 So. 2d XXXI (West Miss. Cas. 1989).

Advisory Committee Notes

Rule 78 does not alter any local rules governing motion practice. But ; however, the local rule must be considered in light of Rule 83.

212

Rule 79. Clerk Books and rrecords kept by the clerk and entries therein.

(a) General Ddocket.

(1) Form; style. The clerk musthall keep a book known as the “general docket” of suchin the form and style as is required by law. (2) Civil action. The clerk and musthall enter therein each civil action on the docketto which these rules are made applicable. (3) File number. The file number of each an action musthall be recnordted on each docket page of the docket whereon an entry of the action is made. (4) Entry requirements.

(A) Type. The following must be recorded in the general docket on the page assigned to the action and marked with the file number:

(i) All Ppapers filed with the clerk; (ii) , all Issued process issued and returns; made thereon, (iii) all aAppearances; (iv) , oOrders; (v) , vVerdicts; , and (vi) jJudgments.

(B) Content. shall be noted in this general docket on the page assigned to the action and shall be marked with its file number. TheseAn entry ies musthall be brief but but include shall show the nature of each filed paper filed or issued writ, issued and the substance of each order or judgment, of the court and of the returns showing execution of process.

(C) Order; judgment.

(i) The The docket must show the date an entry of an order or judgment is entered. (ii) If shall show the date the entry is made. In the event a formal order is entered, the clerk musthall insert the order in the casefile of the case. (a) (b) Minute Bbook. The clerk musthall keep a correct copy of every judgment or order . (b) This record shall be known as the “Minute Book.”

213 (c) Indexes; Ccalendars. Under the court’s direction, the clerk: (1) Must keep a Ssuitable indexes of the general docket; and (2) shall be kept by the clerk under the direction of the court. There shall be pPrepared , under the direction of the court,a calendars of all actions ready for trial. (c) (d) Other Bbooks and Rrecords; photocopy.

(1) Other books and records. The clerk musthall also keep such other books and records as may be required by statute or these rules. (2) Photocopy. The documents required to be kept under this rule may be recorded by means of an exact-copy photocopy process. (d) (e) Removing thecase Ffile in a Case. The case file of a case musthall not be removed from the clerk’s office of the clerk except on the clerk’s or court’s permissionexcept by permission of the court or the clerk. (e) Advisory Committee Historical Note [Rule 79]

Effective April 4/1/, 2002, the Comment to Rule 79(a) was amended to underscore that docket entries must accurately reflect the actual date of entry. 813-815 So. 2d LXXXVIII (West Miss. Cas.es 2002).

Advisory Committee Notes

Rule 79(a) specifies that the a docket entry muiest reflect the date on which it is entries are made in the general docket. Since several important time periods and deadlines are calculated from the date of the entry of a judgments and orders, these entries must accurately reflect the actual date of the entries rather than another date like , such as when the judge the date on which a judgment or order is signs ited by the judge. See, e.g. for example, Miss. R. ule Civ. P. 58 (mandating that a judgment is effective only when entered as provided uinder Rule 79(a)); see also Miss. R. Civ. P. , and Rule 59 (requiring which requires that motions to alter or amend judgments be filed within 10 ten days after the entry of judgment).

214 .

215 Rule 80. Stenographic report or transcript as evidence. [oOmitted)].

Advisory Committee Notes

Mississippi has statutory provisions for the appointment, oath, nature and term of office, bond, removal from office, and duties and responsibilities of court reporters. See Miss. Code Ann. §§ 9-13-1 to -63; id. §§ 9-13-101 to -123; et seq. (1972) and Miss. R. App. P. app. 3M.R.A.P. Appendix III.

216 Rule 81. Rule Aapplicability of rules.

(a) General (a) Aapplicability in General.

(1) These rules apply to all civil proceedings. bBut they are subject to limited applicability in the following actions generally governed by statutory procedures:

are subject to limited applicability in the following actions which are generally governed by statutory procedures. (2)(A) A proceedings pertaining to the writ of habeas corpus; (3)(B) A proceedings pertaining to the disciplining of an attorney; (4)(C) A proceedings pursuant under to the Youth Court Law, Miss. Code Ann. §§ 43-21-101 to -127and the Family Court Law; (5)(D) A proceedings pertaining to an election contests; (6)(E) A proceedings pertaining to bond validations; (7)(F) A proceedings pertaining to the adjudication, commitment, and release of narcotics and alcohol addicts and persons in need of mental treatment; (8)(G) An eminent- domain proceedings; (9)(H) Title 91 of the Mississippi Code of 1972 Annotated; (10)(I) Title 93 of the Mississippi Code of 1972 Annotated; (11)(J) Ccreationg and maintaieniangce a of drainage and water management districts; (12)(K) cCreationg of and changginge a in municipal boundaryies of municipalities; (L) A proceedings brought under the following:

(i) sections Miss. Code Ann. § 9-5-103; (ii) Miss. Code Ann. , § 11-1-23, -29, , 11-1-29, 11-1-31, , 11-1-33, ,11- 1-35, , 11-1-43, , 11-1-45, , 11-1-47, , 11-1-49; (iii) Miss. Code Ann. ,§ 11-5-151 to through 11-5-167; and (iv) Miss. Code Ann. § , and 11-17-33, Mississippi Code of 1972. (13) (2) To the extent they may conflict with these rules, Sstatutory procedures specifically for a provided for each of the above proceedings stated above in Rule 81(a)(1) musthall remain in effect and shall control. But to the extent they may be in conflict with these rules; otherwise these rules apply.

217 (b) Summary Pproceedings. In an ex parte matters where no notice is not required, a proceeding must proceedings shall be as summary as the pertinent statutes contemplate.

(c) Publishing cation of Ssummons or Nnotice. Whenever a statute requires a summons or notice to bey publishedcation, service in accordiang ce with the methods provided in Rule 4 wshaill be taken to satisfy the statutory requirements of such statute. (d) Procedure in Ccertain Aactions and Mmatters. The special procedural rules of procedure set forth in Rule 81(d) this paragraph musthall apply to the actions and matters enumerated stated in Rule 81(d)(1) andsubparagraphs (1) and (2) hereof and shall (d)(2) control to the extent they they may be in conflict with any other rules provision of these rules. (d) (1) 30 days. The following actions and matters musthall be triable 30 days after the first publication where process is by publication or otherwise 30 days after completiong ofservice of process in any manner other than by publication: or 30 days after the first publication where process is by publication, to-wit: (A) aAdoption; (B) cCorrectiong a of birth certificate; (C) aAlterationg a of name; (D) tTerminationg of parental rights; (E) pPaternity; (F) lLegitimation; (G) uUniform reciprocal enforcement of support; (H) dDeterminationg of heirship; (I) pPartition; (J) Pprobating a e of will in solemn form; (K) cCaveat against probating a e of will; (L) wWill contest; (M) wWill construction; (N) A cchild- custody actions; (O) A child- support actions; and (P) eEstablishing ment of grandparents’ visitation. (1) (2) 30 or 7 days. The following actions and matters mustshall be triable 30 days after the first publication where process is by publication or 7 days after completiong ofservice of process in any manner other than by publication:

218 (A) or 30 days after the first publication where process is by publication, to wit: rRemoving al of disabilities of minority; (B) tTemporary relief in a matter for ddivorce, , sseparate maintenance, , cchild custody, or , or cchild support matters; (C) mModifyicationg or enforciementg a of custody, support, and or alimony judgments; (D) cContempt; and (E) An estate matters or and wards’minor’s business requiring in which notice where the time period is not stated in a statute or Rule 81(d)(1) is required but the time for notice is not prescribed by statute or by subparagraph (1) above. (2) (3) Not confessed. A Ccomplaints andor petitions filed in an the actions or and matters stated in Rule 81(d)(1) or (d)(2) enumerated insubparagraphs (1) and (2) above must hall not be taken as confessed.

(4) Answer.

(A) Not required. An No answer must hall not be required in any action or matter stated enumerated in Rule 81(d)(1) or (d)(2). (B) Optional. subparagraphs(1) and (2) above bBut any defendant or respondent may file an answer or other pleading. (C) Court order. oOr the court may require an answer if necessary to develop the issues properly. if it deems it necessary to properly develop the issues.

(4)(i) Failure to answer. A party who fails to file a court-ordered n answer after being required so to do musthall not be permitted allowed to present evidence on thatis party’s behalf.

(5) Summons; time and place; continuance

(A) Summons. UpoOn the filing of any action or matter listed Rule 81(d)in subparagraphs (1) or and (2), a above,summons must hall issue that commands ing the defendant or respondent to appear and defend at a time and place, either in term time or vacation and a place , at which it he same musthall be heard. (B) Time and place. Said The time and place musthall be set by special order, general order, or court rule of the court. (C) Continuance.

219 (i) No additional summons. If such the action or matter is not heard on the hearing datey set for hearing, it may by court order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. (ii) Clerk’s authority. By order or rule, Tthe court may by order or rule authorize its clerk to set tsuche actions or matters for original hearing and to continue the same for hearingit on a later date. (5) (6) Rule 5(b) notice musthall be sufficient as to any temporary hearing in a pending action for divorce, separate maintenance, custody, or support action provifded the defendant has been summoned to answer the original complaint.

(e) Proceedings Mmodified. The fForms of relief formerly obtainabled under the following must be obtained by a motion or action:

(1) Wwrits of fieri facias; (2) , sScire facias; (3) , mMandamus; (4) , eError coram nobis; (5) , eError coram vobis; (6) , sSequestration; (7) , pProhibition; (8) , qQuo warranto; (9) , wWrits in the nature of quo warranto; , and (10) aAll other writs, shall be obtained by motions or actions seeking such relief. (e) (f) Statutory Tterminology of Statutes. In applying these rules to any proceedings to an applicable proceeding, which they are applicable, thestatutory terminology of any statute wthatich also applies mustshall, if inconsistent with these rules , be interpreted taken to mean the an analogous device or procedure proper under these rules. For example: (f) ; thus (and these examples are intended in no way to limit the applicability of this general statement): (1) Bill of complaint, bill in equity, bill, or declaration shall means a complaint as specified in these rules; (2) Plea in abatement shall means motion; (3) Demurrer shall be understood to means motion to strike as set out in Rule 12(f); (4) Plea shall means motion or answer, as whichever is aappropriate under these rules;

220 (5) Plea of set-off or set-off shall be understood to means a permissible counter- claim; (6) Plea of recoupment or recoupment shall refers to a compulsory counter-claim; (7) Cross-bill shall be understood to refers to a counter-claim, or a cross-claim as , whichever is appropriate under these rules; (8) Revivor, revive, or revived , used winth reference to an actions , shall refers to the substitution procedure stated in Rule 25; (9) Decree pro confesso shall be understood to means a entry of default judgment as provided in Rule 55; and (10) Decree shall means a judgment, as defined in Rule 54. ; (g) No specific (g) Pprocedure Not Specifically Prescribed. When no procedure is specifically statprescribed, the court musthall proceed in any lawful manner not inconsistent with the Mississippi Constitution of the State of Mississippi; , these rules; , or any applicable statute.

[Amended effective June 6/24/, 1992; 4/April 13/, 2000.]

Advisory Committee Historical Note

Effective April 4/13/, 2000, Rule 81(d)(5) was amended to make a continuance effective ual on a signed rather than an entered order. 753-754 So. 2d XVII) (West Miss. Cas. 2000.)

Effective June 6/24/, 1992, Rule 81(h) was deleted. 598-602 So. 2d XXIII-XXIV (West Miss. Cas. 1992).

Effective January 1/1/, 1986, Rule 81(a) was amended by adding subsections (10) – (12); Rule 81(b) was amended by deleting examples and by deleting a provision that no answers are required in ex parte matters; Rule 81(d) was rewritten to provide for proceedings in a number of specified actions and to abrogate its treatment of domestic relations matters. 470, 473 So. 2d XVI-XVIII (West Miss. Cas. 1986).

Advisory Committee Notes Rule 81 compleiments Rule 1 by specifying which civil actions are partially or not governed only partially, or not at all, by the provisions of the M.R.C.PMississippi Rules of Civil Procedure.

Rule 81(a) lists 12 categories of civil actions which are not governed entirely by the Mississippi Rules of Civil Procedure M.R.C.P. In each of those actione, s there are statutory

221 provisions detailing certain procedures to be utilized. See generally Miss. Code Ann. §§ 11-43-1, et seq., (habeas corpus); 73-3-301, et seq., (disciplining of aattorneys); 43-21-1, et seq., (youth court proceedings); 23-15-911 et seq. (election contests); 31-13-1, et seq., (bond validation); 41-21-61, et seq., (persons with mental illness or an intellectual disability); 41-30-1, et seq., (adjudication, commitment, and release of alcohol and drug addicts); 11-27-1, et seq., (eminent domain); 91-1-1, et seq., (trustss and estatess); 93-1-1, et seq., (domestic relations); 51-29-1, et seq., and 51-31-1, et seq., (creationg and maintenanmaintaining ce of drainage and water management districts); 21-1-1, et seq., (creationg of and change ing municipal boundaries of municipalities); and those proceedings identified in category (L12) by their Ccode Ttitle as follows: 9-5-103 (bonds of receivers, assignees, executors may be reduced or cancelled, if excessive or for sufficient cause); 11-1-23 (court or judge may require new security); 11-1-29 (proceedings on death of surety on bonds, etc.); 11-1-31 (death of parties on bonds having force of judgment where—citation in anticipation of judgment); 11-1-35 (death of parties on bonds having force of judgment when citation issued and returnable); 11-1-43 through to 11-1-49 (seizure of perishable commodities by legal process); 11-5-151 through to 11-5-167 (receivers in chancery); and 11-17-33 (receivers appointed for nonresident or unknown owners of mineral interests).

But However, in any instance in the twelve 12 listed categories in where which the controlling statutes are silent as to a procedure, the Mississippi .Rules of .Civil .Procedure . govern.

As to ex parte matters, Rule 81(b) intends ts intended to preserve among other things, inter alia, the summary manner in which many of the following matters are handled: matters testamentary, of administration, in minors’ or /wards’ business; and , and in cases of idiocy, lunacy, and persons of unsound mind. are handled. See Miss. Code Ann. § 11-5-49 (1972).

Rule 81(c) pertains to an actions or matters where a statute requires that summons or notice be made by publication. In those instances, Rule 4 publication as provided by Rule 4 shall satisfies y the statutory requirements of such statute(s). Rule 81(d) recognizes that there are certain actions and matters whose nature requires special procedural rules, including: of procedure. Basically these (1) a are matters whereof which the State of Mississippi has an interest in the outcome; (2) a matter whose nature or which because of their mature should should not subject a defendant or /respondent who fails to answer to a default judgment; and (3) for failure to answer. Furthermore, they aa re matters that should not be interpreted taken as confessed even in the absence of a defendant’s or respondent’s the appearance. of the defendant/respondent. Most of the enumerated matters enumerated are peculiar to chancery court. Rule 81(d) divides them actions therein detailed into two categories . This division is based upon the recognition

222 that because of their simplicity or need for speedy resolution, some matters, because of either their simplicity or need for speedy resolution, should be triable after a short notice to the defendant or /respondent. Yet because of their complexity, ; while others , because of their complexity, should afford the defendant or /respondent more time for trial preparation.

Under Rule 81(d)(3), provides that the pleading initiating the action should be commenced by complaint or petition only and shall not be taken as confessed. Initiating a Rule 81(d) actions by “motion” is not intended.

Rule 81(d)(5) recognizes that since no answer is required of a defendant or /respondent, then the issued summons issued musthall inform the defendant or respondent him of the time and place where he is to appear and defend. If the matter is not heard on the date originally set for the hearing, the court may sign an order on that day continuing the matter to a later date. In addition, Tthe rule also pallows rovides that a the Ccourt to may adopt a rule or issue an order authorizing its Cclerk to set an actions or matters for an original hearings and to continue the the same for hearing forn a later date. (A Llocal rules should be filed with the Mississippi Supreme Court as Rule 83 requiresd by Rule 83).

According to Rule 81(d)(6), as to provides that as to any temporary hearing in a pending action for divorce, separate maintenance, child custody, or child support, Rule 5(b) notice wiin the manner prescribed by Rule 5(b) shall be sufficient, if provided the defendant or /respondent has already been summoned to answer.

223 CHAPTER SECTION 11XI. GENERAL PROVISIONS

Rule 82. Jurisdiction; and venue.

(a) Jurisdiction Uunaffected. These rules must hall not be construed to extend or limit the jurisdiction of a the courts of Mississippi court. (b) Venue of Actions. Unless this rule states otherwiseExcept as provided by this rule, applicable statutes control venue of an ll actions shall be as provided by statute. (c) Venue; multiple Where Cclaims or Pparties Joined.

(1) Where. Where If several claims or parties have been properly joined, the suit may be brought in any county where in which any one of the claims properly could properly have been brought. (2) Joinder. Whenever an action has been commenced in a proper county, additional claims and parties may be joined , pursuant under to Rules 13, 14, 22 and 24 , as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on sucthe claims or against sucthe parties. (c) (d) Improper Vvenue. (1) Transfer rather than dismiss. When an action is filed laying venue in the wrong county, instead of dismissing the action, the action shall not be dismissed, but the court, on timely motion mu, st hall transfer ithe action to the court where in which it properly might properly have been filed. (2) Case proceeds. and tThe case musthall proceed as though originally filed therein the court where it is transferred.. (3) Transfer expense. The expenses of the transfertransferring the case mu sthall be taxborned by to hethe plaintiff. (4) More than one court. If the action properly might have been filed in more than one court, Tthe plaintiff musthall have the right to select the court to which the action wilshall be transferred in the event the action might properly have been filed in more than one court. (d) (e) Forum Nnon-conveniens. If an action With respect to actionsis filed in an appropriate venue, and no statute designates or limits where venue is not otherwise designated or limited by statute, then for the parties’ and witnesses’ convenience or in the interest of justice, the court may , for the convenience of the parties and witnesses or in the interest of justice, ttransfer any action or any claim in any civil action to a ny court in where ich the action properly might have been properly filed, and tthe case musthall proceed as though originally filed therein that court.

224 (e) [Amended effective February 2/20/, 2004, to add Section 82(e) allowing transfer for forum nonconveniens for cases filed after the effective date.]

225 Advisory Committee Notes

Under Rule 82(c), provides that if venue is proper for one plaintiff’s claim, and if tsuche plaintiff has been properly joined with other plaintiffs, venue is proper for all plaintiffs’ claims. Section 11-11-3(2) of the Mississippi Code of 1972 Annotated §11-11-3(2), however, provides states that “[i]n any civil action where more than one (1) plaintiff is joined, each plaintiff shall independently establish proper venue; it is not sufficient that venue is proper for any other plaintiff joined in the civil action.” Under Rule 82(b), states that unless the rule states otherwise“[e]xcept as provided by this rule, venue in all actions must hall be according to s provided by statute.” Thus, therefore, is a conflict exists between the rule and the statute.

Under in that the rule, states that venue is proper in cases involving multiple plaintiffs who are properly joined if venue is proper for a single plaintiff’s claim; yet under , whereas the statute, provides that in a cases involving multiple plaintiffs, venue must be proper for each plaintiff’s claim. No conflict exists There is no conflict in cases involving multiple defendants. See Penn Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2007) (— “venue properly established against one defendant generally is proper against all defendants). ” See Penn Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2007). In cases involving a medical- malpractice defendant and another defendant, however, venue established by Section 11-11-3 of the Mississippi Code of 1972 Annotated §11-11-3 is only appropriate in the county where the alleged malpractice occurred. See Adams v. Baptist Memorial Mem’l Hosp.ital-DeSoto, Inc., 965 So. 2d 652, 657-58 (Miss. 2007).

Rule 82(e) authorizes a motion to transfer venue to another Mississippi court having proper venue within the state based upon forum non-conveniens. In addition, Section 11- 11-3 of the Mississippi Code Annotated of 1972 §11-11-3 authorizes transfer to another Mississippi forum within Mississippi that is more convenient and further authorizes dismissal of the case in Mississippi if a more convenient forum is available in another state. A trial court ruling on a motion to dismiss made filed pursuant under to the statute must determine decide whether, given “the interest of justice” and “the convenience of the parties and witnesses,” “a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state.” Miss. Code. Ann. § 11-11- 3(4)(a). Mississippi Code Annotated §11-113(4)(a). The trial court may consider the factors stated in Section 11-11-3(4)(a)et forth in Mississippi Code Annotated §1111-3(4)(a) of the Mississippi Code Annotated of 1972..

226

Rule 83. Local court rules.

(a) When PPermissibilityssible.

(1) Judicial conference. The conference of circuit, chancery, and county court judges may hereafter makeissue uniform rules and amendments thereto concerning practice in their respective courts not inconsistent with these rules. (2) Judicial majority. Likewise, any court by action of a majority of the judges thereof may hereafter issumake local rules and amendments thereto concerning practice in their respective courts not inconsistent with these rules. (A) No majority. In the event there is no majority, the senior judge musthall have an additional vote. (a) (b) Procedure for Aapprovingal. (1) Requirements. All such local rules and uniform rules adopted before being effective must be filed in the Mississippi Supreme Court of Mississippi for approval. The following must be filed with a motion for approval in an electronically formatted medium (e.g., USB flash drive or CD-ROM):

(A) Such motions shall also include aA copy of the motion; and of (B) tThe proposed rules in an electronically formatted medium (such as USB Flash Drive or CD-ROM).

(2) Receipt. UpAfter a proposed rule is received before it is approved, on receipt of such proposed rules and prior to any approval of the same, the Mississippi Supreme Court may submit them it to the Mississippi Supreme Court Advisory Committee on Rules for advice as to whether any suchthe proposed rule is are consistent or in conflict with these rules or any other rules the Mississippi Supreme Court has adopted by the Supreme Court. (b) (c) Publication. All local and uniform rules hereinafter approved by the Mississippi Supreme Court must hall be submitted for publication in the Southern Reporter (Mississippi cases). (c) [Amended effective March 3/1/, 1989; November 11/29/, 1989; February 2/1/, 1990; March 3/13/, 1991; December 12/16/, 1991; amended March 3/10/, 1994, effective retroactively from and after January 1/1/, 1993; amended October 10/13/, 1995, effective from and after April 4/14/, 1994; amended effective July 7/1/, 2010.]

227 Advisory Committee Historical Note

Rule 83 was amended March 3/10/, 1994, effective retroactively from and after January 1/1/, 1993, by deleting the word “hereinafter” in Rule 83(b) following the words, “uniform rules”; by deleting Rule 83(c) in its entirety; and by renumbering 83(d) as 83(c). 632-635 So. 2d XXIII-XXIV (West Miss. Cases 1994).

[Adopted August 8/21, 19/96.]

Advisory Committee Notes

Practitioners may access local rules that have been approved by the Mississippi Supreme Court on the Court’s its website.

228

Rule 84. Forms 1, 2, 3, and 4.

Under Rule 4(b)(3)(A), a summons served by a process server must substantially conform to Form 1. Under Rule 4(b)(3)(B), a summons served by the sheriff must substantially conform to Form 2. Under Rule 4(c)(3)(A)(ii), a notice and acknowledgment must substantially conform to Form 3. And under Rule 4(c)(4)(A), a summons by publication must substantially conform to Form 4. The Appendix contains Forms 1, 2, 3, and 4.

Advisory Committee Notes

Former Rule 84 referred to “forms contained in the Appendix of Forms [that] are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” Prior to December 2015 amendments, Federal Rule of Civil Procedure 84 referred to “forms in the Appendix [that] suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” The amended Federal Rule of Civil Procedure 84 abrogated the Appendix of Forms. The Committee Note recognized the following: (1) that the purpose for providing illustrations—although useful when the rules were adopted—had been fulfilled; (2) that many alternative sources for forms existed; and (3) that the forms were no longer necessary.

Unlike its federal counterpart, Rule 84 of the Mississippi Rules of Civil Procedure does not abrogate all forms. Rule 84 does not abrogate forms mentioned in Rule 4: Form 1 (formerly Form 1A); Form 2 (formerly Form 1AA); Form 3 (formerly Form 1-B); and Form 4 (formerly Form 1-C). These forms, however, have been updated. In contrast, December 2015 amendments to the Federal Rules of Civil Procedure moved similar forms to the end of Federal Rule of Civil Procedure 4.

Yet like its federal counterpart, Mississippi Rule of Civil Procedure 84 recognizes that the purpose of providing illustrations has been fulfilled. In addition, Rule 84 recognizes that alternative sources for the forms exist and that they are no longer necessary.

229 The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.

230 Rule 85. Title; citation.

These rules areshall be known as the “Mississippi Rules of Civil Procedure” and may be cited as: Miss. R. Civ. P. or M.R.C.P (e.g., Miss. R. Civ. P. 85 or M.R.C.P. 85); e. g., M.R.C.P. 85.

231 APPENDIX: FORMS 1, 2, 3 AND 4 A. FORMS See Rules 4 and 84 for more information about Forms 1, 2, 3, and 4. These forms are illustrations only. [See Rule 84] INTRODUCTORY STATEMENT 1. The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms. 2. Except where otherwise indicated, each pleading, motion, and other paper shouldhave a caption similar to that of the summons, with the designation of the particular paper substituted for the word “Summons.” In the caption of the summons and in the caption of the complaint all parties must be named but in other pleadings and papers it is sufficient to state the name of the first party on each side, with an appropriate indication of other parties. See M.R.C.P. 4(b), 7(b)(2), and 10(a). 3. Each pleading, motion, and other paper is to be signed by at least one attorney ofrecord in his individual name (M.R.C.P. 11). The attorney’s name is to be followed by his address as indicated in Form 2. In forms following Form 2 the signature and address are not indicated. 4. If a party is not represented by an attorney, the signature and address of the partyare required in place of those of the attorney (M.R.C.P. 11).

232 FORM 1A. SUMMONSForm 1. Process server (front).

(Process Server) IN THE (Insert court) COURT OF (Insert county) COUNTY, MISSISSIPPI

A.B., Plaintiff(s)

v. Civil Action No. (Insert case number)

C.D., Defendant(s)

IN THE COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff(s) v. Civil Action, File No. CD., Defendant(s) SUMMONS

THE STATE OF MISSISSIPPI TO: (Insert the name and address of the person to be served)

NOTICE TO DEFENDANT(S)

THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT, AND YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS. You are required to mail or hand deliver a copy of a written response to the Complaint to (Insert attorney’s name) , the attorney for the Plaintiff(s), whose post office address is (Insert post office address) and whose street address is (Insert street address) . Your response must be mailed or delivered within (30) days from the date of delivery of this summons and complaint or a judgment by default will be entered against you for the money or other things demanded in the complaint. You must also file the original of your original response with the Clerk of this Court within a reasonable time afterward. Issued under my hand and the court seal of said Court, this the (Insert date) day of (Insert year) , 19 .

(Insert clerk’s signature) Clerk of (Insert county) County, Mississippi

(Affix seal)

233

Clerk of County, Mississippi

(Seal)

[This form shall appear on the reverse side of Form 1A. Summons (Process Server)] Form 1. Process server (back).

PROOF OF SERVICE—--SUMMONS

(Process Server) [Use separate proof of service for each person served]

(Insert name of person or entity served) Name of Person or Entity Served

I, (Insert process server’s name), the process server identified below, served , the undersigned process server, served the summons and complaint upon (Insert name of person or entity served)the person or entity named above in the following manner set forth below (process server must check proper space and provide all additional requested information that is requested and pertinent to the mode of service used): [] FIRST CLASS MAIL AND ACKNOWLEDGEMENT SERVICE. By mailing— (by first class mail, postage prepaid and ), on the date stated in the attached Notice, —to (Insert name) copies of the: (1) copies to the person served, together with copies of the form of nnotice; (2) and acknowledgement; and (3) self-addressed return envelope, postage prepaid. , addressed to the sender (Attach completed acknowledgement of receipt from Form 3)pursuant to M.R.C.P. Form 1B). [] PERSONAL SERVICE. I personally delivered copies to oOn thethe (Insert date) of (Insert year), I personally delivered copies to (Insert name) day of , 19 , where I found said that person(s) in (Insert county) County of the State of (Insert state) . [] RESIDENCE SERVICE. After exercising reasonable diligence I was unable to deliver copies to said (Insert name) person wwithin (Insert county) County of the State of (Insert state). county, (state). I served the summons and complaint on the (Insert date) of (Insert year), day of , 19 , at the usual place of abode of said (Insert name)person by leaving a true copy of the summons and complaint with (Insert name), who is the (Insert wife, husband, son, daughter, or other person) (here insert wife, husband, son, daughter or other person as the case may be), a family member of (Insert name) the family of the person served above the age 16 of sixteen years and willing to receive the summons and complaint. And afterwards on the

234 (Insert date) of (Insert year), and thereafter on the day of , 19 , I mailed ((by first class mail, postage prepaid) copies to(Insert name) the person served at hat his/ or her usual place of abode where the copies were left. [] CERTIFIED MAIL SERVICE. By mailing to an address outside Mississippi (by first class mail, postage prepaid, requiring a return receipt) copies to (Insert namethe person served). (Attach signed return receipt or the return envelope marked “Refused.”) At the time of service I was at least 18 years of age and not a party to this action. Fee for service: $ (Insert amount of fee) Process server must list below: [Please print or type]

(Insert name)

(Insert social security number)

(Insert address)

(Insert telephone number) Name Social Security No. Address Telephone No. State of (Insert state). ) County of (Insert county). ) (Insert name) Ppersonally appeared before me, a the undersigned notary public authority in the above jurisdiction and whose signature follows, and for the state and county and after aforesaid, the within named who being first by me duly sworn, states on oath that the matters and facts set forth in the foregoing previous “Proof of Service-—Summons” are true and correct as therein stated in it..

(Insert process server’s signature)

Process Server (Signature) Sworn to and subscribed before me the (Insert date) of (Insert year),this the day of 19 .

(Insert process notary public’s signature)

235 Notary Public (Seal) (Affix seal) My Ccommission Eexpires: (Insert date) [Adopted effective March 3/1/, 1985; amended effective May 5/2/, 1985; amended March 3/17/, 1995.]

236 Form 2. Sheriff (front).

FORM 1AA. SUMMONS IN THE (Insert court) COURT OF (Insert county) COUNTY, MISSISSIPPI

A.B., Plaintiff(s)

v. Civil Action No. (Insert case number)

C.D., Defendant(s)

(Sheriff) IN THE COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff(s) v. Civil Action, File No. C.D., Defendant(s) SUMMONS

SUMMONS THE STATE OF MISSISSIPPI TO: (Insert the name and address of the person to be served)

NOTICE TO DEFENDANT(S)

THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT, AND YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS. You are required to mail or hand deliver a copy of a written response to the Complaint to (Insert attorney’s name), the attorney for the Plaintiff(s), whose post office address is (Insert post office address) and whose street address is (Insert street address). Your response must be mailed or delivered within 30 days from the date of delivery of this summons and complaint or a judgment by default will be entered against you for the money or other things demanded in the complaint. You must also file your original response with the Clerk of this Court within a reasonable time afterward. Issued under my hand and court seal, the (Insert date) of (Insert year).

(Insert clerk’s signature) Clerk of (Insert county) County, Mississippi

(Affix seal)

237 Form 2. Sheriff (back).

THE STATE OF MISSISSIPPI TO: (Insert the name and address of the person to be served) NOTICE TO DEFENDANT(S) THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT AND YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS. You are required to mail or hand-deliver a copy of a written response to the Complaint to , the attorney for the Plaintiff(s), whose post office address is , and whose street address is . Your response must be mailed or delivered within (30) days from the date of delivery of this summons and complaint or a judgment by default will be entered against you for the money or other things demanded in the complaint. You must also file the original of your response with the Clerk of this Court within a reasonable time afterward. Issued under my hand and the seal of said Court, this day of , 19 .

Clerk of County, Mississippi

(Seal)

[This form shall appear on the reverse side of Form 1AA: Summons (Sheriff)] RECEIVED the (Insert date) of (Insert year).

(Insert sheriff’s signature) Sheriff of (Insert county) County, Mississippi THIS DAY OF , 19 . BY SHERIFF SHERIFF’S RETURN

State of (Insert state). County of (Insert county).

[] State of Mississippi ) County of ) I personally delivered copies of the summons and complaint on the (Insert date) of (Insert year), to: (Insert name).

[] After exercising reasonable diligence I was unable to deliver copies of the summons and complaint to (Insert name) within (Insert county) County, Mississippi. I served the summons and complaint on the (Insert date) of (Insert year), at the usual place of abode of (Insert name) by leaving a true copy of the summons and complaint with (Insert name), who is the (Insert wife, husband, son, daughter, or other person), a family member of (Insert name) above age 16 and willing to receive the summons and complaint. And afterwards on the (Insert date) of (Insert year), I mailed (first class, postage prepaid) copies to(Insert name) at his/her usual place of abode where the copies were left. [] ( ) I personally delivered copies of the summons and complaint on the day of , 19 , to: . ( ) After exercising reasonable diligence I was unable to deliver copies of the summons and complaint to within County, Mississippi. I served the summons and complaint on the day of , 19 , at the usual place of abode of said , by leaving a true copy of the summons and complaint with , who is the (here insert wife, husband, son, daughter or other person so as the case may be), a member of the family of the person served above the age of sixteen years and willing to receive the summons and complaint, and thereafter on the day of , 19 , I mailed (by first class mail, postage prepaid) copies to the person served at his or her usual place of abode where the copies were left. ( ) I was unable to serve the summons and complaint. This (Insert date) of (Insert year).This the day of , 19 .

Sheriff of (Insert county), Mississippi.

(Insert deputy sheriff’s signature) Deputy Sheriff

Sheriff of County, Mississippi By: , Deputy Sheriff [Note: All summons issued to the sheriff must be returned within thirty 30 days from the day the summons was received by the sheriff pursuant underto the requirements of Mississippi Rule of Civil Procedure 4(c)(2)]. [Adopted effective March 3/1/, 1985; amended effective February 2/1/, 1990.]

2

3 Form 3. Notice and acknowledgment for service by mail (front).

FORM 1B. NOTICE AND ACKNOWLEDGMENT FOR SERVICE BY MAIL IN THE (Insert court) COURT OF (Insert county) COUNTY, MISSISSIPPI

A.B., Plaintiff(s)

v. Civil Action No. (Insert case number)

C.D., Defendant(s)

IN THE COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff(s) (include appropriate designation of other plaintiffs) v. Civil Action, File No. C.D., Defendant(s) (include appropriate designation of other defendants) NOTICE

TO: (Insert the name and address of the person to be served)

TO: (Insert the name and address of the person to be served) The enclosed summons and complaint are served pursuant according to to Rule 4(c)(3) of the Mississippi Rules of Civil Procedure. You must sign and date the acknowledgment at the bottom of this page. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate that authority under your signature your authority. If you do not complete and return the form to the sender within 20 days of the date of mailing shown below, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint. If you do complete and return this form, you (or the party on whose behalf you are being served) must respond to the complaint within 30 days of the date of your signature. If you fail to do so, judgment by default will be taken entered against you for the relief demanded in the complaint.

I declare that this Notice and Acknowledgement of Receipt of Summons and Complaint was mailed on (Insert date) of (Insert year). (Insert date)

4 (Insert signature)

Signature

5 Form 3. Notice and acknowledgment for service by mail (back).

THIS ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT MUST BE COMPLETED

I acknowledge that I have received a copy of the summons and of the complaint in the above-captioned matter in the State of (Insert state) ..

(Insert signature)

(Insert relationship to entity/authority to receive service of process) Signature

(Insert date of signature) (Relationship to Entity/Authority to Receive Service of Process)

Date of Signature

State of (Insert state). County of (Insert county).

(Insert name) personally appeared before me, a notary public in the above jurisdiction and whose signature follows, who solemnly and truly declared and affirmed before me that the matters and facts in the previous “Acknowledgment of Receipt of Summons and Complaint” are true and correct as stated in it.

(Insert process server’s signature)

Affirmed to and subscribed before me the (Insert date) of (Insert year),

(Insert process notary public’s signature) State of ) County of )

6 Personally appeared before me, the undersigned authority in and for the State and County aforesaid, the above named , who solemnly and truly declared and affirmed before me that the matters and facts set forth in the foregoing Acknowledgement of Receipt of Summons and Complaint are true and correct as therein stated. Affirmed and subscribed before me this day of , 19 .

(Affix seal)

My commission expires: (Insert date)

Notary Public My Commission Expires (Seal) [Adopted effective March 3/1/, 1985; amended effective May 5/2/, 1985; amended March 3/17/, 1995.]

7

Form 14c. Summons by publication.

IN THE (Insert court) COURT OF (Insert county) COUNTY, MISSISSIPPI

A.B., Plaintiff(s)

v. Civil Action No. (Insert case number)

C.D., Defendant(s)

IN THE COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff(s) (It is sufficient here to state the name of the first plaintiff with an appropriate designation of other plaintiffs.) v. Civil Action, File No. CD., Defendant(s) (It is sufficient here to state the name of the first defendant with an appropriate designation of other defendants.) SUMMONS

THE STATE OF MISSISSIPPI TO: (Insert the name and address of the person to be served)

TO: (Insert name of the person(s) to be served) You have been made a Defendant in the suit filed in this Court by (Insert name of all Plaintiffs), Plaintiff(s), seeking (Insert a brief description of the relief being sought). Defendants other than you in this action are (insert names of all defendants other than the person or persons who are the subject of this summons).

You are required to mail or hand deliver a copy of a written response to the Complaint to (Insert attorney’s name), the attorney for the Plaintiff(s), whose post office address is (Insert post office address) and whose street address is (Insert street address). YOUR RESPONSE MUST BE MAILED OR DELIVERED NOT LATER THAN 30 DAYS AFTER (INSERT DATE) OF (INSERT YEAR), WHICH IS THE DATE OF THE FIRST PUBLICATION OF THIS SUMMONS. IF YOUR RESPONSE IS NOT MAILED OR DELIVERED AS STATED, A JUDGMENT BY DEFAULT WILL BE ENTERED AGAINST YOU FOR THE MONEY OR OTHER RELIEF DEMANDED IN THE COMPLAINT.

8 You must also file your original response with the Clerk of this Court within a reasonable time afterward. Issued under my hand and court seal, the (Insert date) of (Insert year).

(Insert clerk’s signature) Clerk of (Insert county) County, Mississippi

(Affix seal)

You are required to mail or hand deliver a written response to the Complaint filed against you in this action to , Attorney for Plaintiff(s), whose post office address is and whose street address is . YOUR RESPONSE MUST BE MAILED OR DELIVERED NOT LATER THAN THIRTY DAYS AFTER THE DAY OF , 19 , WHICH IS THE DATE OF THE FIRST PUBLICATION OF THIS SUMMONS. IF YOUR RESPONSE IS NOT SO MAILED OR DELIVERED, A JUDGMENT BY DEFAULT WILL BE ENTERED AGAINST YOU FOR THE MONEY OR OTHER RELIEF DEMANDED IN THE COMPLAINT. You must also file the original of your Response with the Clerk of this Court within a reasonable time afterward. Issued under my hand and the seal of said Court, this day of , 19 .

Clerk of County, Mississippi

(Seal) [Adopted effective March 1, 1985; amended effective May 2, 1985.]

9

10

FORM 1D. RULE 81 SUMMONS (Sheriff or Process Server) IN THE COURT OF COUNTY, MISSISSIPPI A. B., Plaintiff(s) v. Civil Action, File No. C. D., Defendant(s) SUMMONS THE STATE OF MISSISSIPPI TO: (Insert the name NOTICE TO DEFENDANT(S) THE COMPLAINT OR PETITION WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT AND YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS. You are summoned to appear and defend against said complaint or petition at ___O’clock ____.M. on the day of 19 , in the courtroom of the County Courthouse at , Mississippi, and in case of your failure to appear and defend a judgment will be entered against you for the money or other things demanded in the complaint or petition. You are not required to file an answer or other pleading but you may do so if you desire. Issued under my hand and the seal of said Court, this day of , 19 .

Clerk of County, Mississippi (Seal) (Note: All summons issued to the sheriff must be returned prior to the time the defendant is summoned to appear.) [Adopted effective January 10, 1986.] FORM 1DD. RULE 81 SUMMONS (Summons by Publication) IN THE COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff(s) (It is sufficient here to state the name of the first plaintiff with an appropriate designation of other plaintiffs.) v. Civil Action, File No. C.D., Defendant(s) (It is sufficient here to state the name of the first defendant with an appropriate designation of other defendants.) SUMMONS THE STATE OF MISSISSIPPI

11 TO: (Insert name of the person(s) to be served.) You have been made a Defendant in the suit filed in this Court by , (Insert name of all Plaintiffs) Plaintiff(s) seeking (Insert a brief description of the relief being sought). Defendants other than you in this action are (Insert names of all defendants other than the person or persons who are the subject of this summons) You are summoned to appear and defend against the complaint or petition filed against you in this action at o’clock _. M. on the day of , 19 , in the courtroom of the County Courthouse at , Mississippi, and in case of your failure to appear and defend, a judgment will be entered against you for the money or other things demanded in the complaint or petition. You are not required to file an answer or other pleading but you may do so if you desire. Issued under my hand and the seal of said Court, this day of , 19 .

Clerk of County, Mississippi (Seal)

12 FORM 1E. WAIVER OF PROCESS IN THE COURT OF COUNTY, MISSISSIPPI A.B. Plaintiff v. Civil Action, File No. C.D. Defendant WAIVER OF PROCESS The undersigned (name ), whose post office address is and whose street address is , does hereby waive the service of summons and (designate any pleading on which service is being waived ) upon myself in this cause. In executing this document I certify that I am not an unmarried minor and am not mentally incompetent. (In addition the person executing the waiver may add any or all of the following to the document:) [Furthermore, by the filing of this document, I enter my appearance in this cause] just as if I had been served more than 30 days prior to this date] [and agree that this action may be heard and disposed of without further notice to me] [and join in this action and in the prayer for relief] This the day of , 20 .

Name STATE OF ) COUNTY OF ) Personally appeared before me, the undersigned authority for the jurisdiction aforesaid, the within named who acknowledged that he signed and delivered the above and foregoing instrument on the day and year therein mentioned. Given under my hand this the day of , 20 .

Notary Public My Commission Expires:

[In lieu of the above acknowledgment the following oath may be used:] STATE OF ) COUNTY OF ) Personally appeared before me the undersigned authority in and for the jurisdiction aforesaid the within named who, being first by me duly sworn, states on oath that the matters and facts set forth in the foregoing instrument are true and correct as therein stated.

Name

13 Sworn to and subscribed before me this the day of , 20 .

Notary Public My Commission Expires:

[Adopted effective February 1, 1990; amended effective July 1, 2009 to delete convicted felony exception.] FORM 2. COMPLAINT ON A PROMISSORY NOTE 1. Defendant on or about , 19 , executed and delivered to Plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on , 19 , the sum of dollars with interest thereon at the rate of percent per annum] [and agreed to pay a reasonable attorney’s fee for collection]. 2. Defendant owes to plaintiff [the amount of said note] [$ that is due on said note] and interest. Wherefore plaintiff demands judgment against defendant for the sum of dollars, interest, attorney’s fee, and costs.

Attorney for Plaintiff

Address FORM 3. COMPLAINT ON COVENANT OR AGREEMENT 1. On or about the day of , 19 , plaintiff and defendant entered into agreement by which defendant promised [here set out agreement in general terms]. 2. Defendant breached the agreement by [here set out breaches in general terms]. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 4. COMPLAINT FOR SPECIFIC PERFORMANCE 1. This is an action for specific performance of a contract to convey real propertyin County, Mississippi. 2. On , 19 , plaintiff and defendant entered into a written contract, a copy being attached and marked Exhibit A. 3. Plaintiff timely tendered the purchase price to defendant and requested aconveyance of the real property described in the contract but defendant refused to accept the tender or to make the conveyance. 4. Plaintiff offers to pay the purchase price. Wherefore plaintiff demands judgment that defendant be required to perform specifically the contract and for damages.

14 FORM 5. COMPLAINT ON AN OPEN ACCOUNT 1. Defendant owes plaintiff dollars due by open account. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 6. COMPLAINT ON ACCOUNT STATED 1. Defendant owes plaintiff dollars on an account stated between the plaintiff and defendant on the day of , 19 . Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 7. COMPLAINT FOR GOODS SOLD AND DELIVERED 1. Defendant owes plaintiff dollars for goods sold and delivered by plaintiff to defendant between the day of and the day of , 19 . Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 8. COMPLAINT FOR WORK AND LABOR DONE 1. Defendant owes plaintiff dollars for work and labor done for the defendant by the plaintiff on the day of , at defendant’s request. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 9. COMPLAINT FOR MONEY LENT 1. Defendant owes plaintiff dollars for money lent by plaintiff to defendant on or about the day of , 19 . Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 10. COMPLAINT FOR MONEY PAID BY MISTAKE 1. Defendant owes plaintiff dollars for money paid by plaintiff to defendant by mistake on or about the day of . 19 , under the following circumstances: [here briefly state the circumstances]. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 11. COMPLAINT FOR MONEY HAD AND RECEIVED 1. Defendant owes plaintiff dollars for money had and received from one on or about the day of , 19 , to be paid by defendant to plaintiff. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 12. COMPLAINT FOR MONEY PAID BY PLAINTIFF FOR DEFENDANT 1. Defendant owes plaintiff dollars because of money paid by the plaintiff for the defendant on or about the day of , 19 , at defendant’s request.

15 Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 13. COMPLAINT ON A POLICY OF LIFE INSURANCE 1. On or about the day of , 19 , defendant issued a policy whereby the defendant insured the life of who died on the day of , 19 , of which the defendant has had notice. 2. As a result, the amount of the policy is now due and the plaintiff is thebeneficiary of the proceeds of the policy. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 14. COMPLAINT ON A POLICY OF FIRE INSURANCE 1. On or about the day of . 19 , defendant insured plaintiffs dwelling house (or other property, as the case may be) against loss or injury by fire and other perils in a policy of insurance, for the term of years. 2. The house (or other property) was wholly destroyed (or was damaged) by fire onthe day of , 19 , of which the defendant has had notice. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 15. COMPLAINT FOR NEGLIGENCE OR WANTONNESS 1. On or about the day of . 19 , upon a public highway [state the name of the street] in [City]; County, Mississippi, the defendant negligently [or wantonly] caused or allowed a motor vehicle to collide with a motor vehicle occupied by the plaintiff. 2. As a proximate consequence of the defendant’s said negligence [or wantonness],the plaintiff was caused to suffer the following injuries and damages: [enumerate injuries and damages]. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. FORM 16. COMPLAINT FOR ASSAULT AND BATTERY 1. On or about the day of , 19 , the defendant committed an assault and battery on the plaintiff. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. FORM 17. COMPLAINT FOR FALSE IMPRISONMENT 1. On or about the day of , 19 , the defendant unlawfully arrested and imprisoned the plaintiff (or caused the plaintiff to be arrested and imprisoned as the case may be) on a charge of larceny (or as the case may be) for days. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs.

16 FORM 18. COMPLAINT FOR MALICIOUS PROSECUTION 1. On or about the day of , 19 , defendant, maliciously, and without probable cause therefor, caused the plaintiff to be arrested under a warrant issued by , a justice court judge, on a charge of (as the case may be). 2. Before the commencement of this action, this charge was judicially investigated,the prosecution ended, and the plaintiff discharged. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. FORM 19. COMPLAINT FOR FRAUD

1. On or about the day of , 19 , defendant and plaintiff were negotiating concerning the purchase by plaintiff from defendant of the following described property: [describe property]. 2. At that time defendant represented to plaintiff that [here set out representationswith particularity]. 3. The representations made by defendant were false [and defendant knew thatthey were false] [and defendant, without knowledge of the true facts, recklessly misrepresented them] [and were made with the intention that plaintiff should rely upon them]. 4. Plaintiff believed the representations and in reliance upon them purchased theproperty. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. FORM 20. COMPLAINT ON A WARRANTY 1. On or about the day of , 19 , defendant sold a (as the case may be) to the plaintiff on which the defendant gave warranty as shown by Exhibit A which is attached hereto [or insert the substance of the warranty]. 2. In fact [here state the breach in general terms]. FORM 21. COMPLAINT FOR CONVERSION 1. On or about the day of , 19 , defendant converted to his own use [here describe in general terms the property allegedly converted] of the Company of the value of dollars, the property of plaintiff. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest and costs. FORM 22. MOTION TO DISMISS PURSUANT TO RULE 12(b) The defendant moves that the Court proceed as follows: 1. To dismiss the complaint for lack of subject matter jurisdiction in that it is [anaction seeking the reformation of a written instrument (or as the case may be)] and plaintiff has a full and adequate remedy [at law] [in equity]. 2. To dismiss the complaint for lack of jurisdiction over the person in that [thedefendant is a corporation organized under the laws of the State of and was not and is not subject to service of process within the State of Mississippi (or as the case may be)].

17 3. To dismiss the action on the ground of improper venue in that defendant is adomestic corporation domiciled in County, which is not the county in which [this action is brought] [the cause of action occurred or accrued]. 4. To dismiss the complaint because of insufficiency of process in that thesummons served on the defendant [was not signed by the clerk] [does not contain the names and addresses of the parties] [is directed to a person other than the defendant named in the complaint [did not have attached a copy of the complaint] (or as the case may be). 5. To dismiss the action because of insufficiency of service of process in that thesummons served on defendant [was sent by ordinary mail rather than by certified mail] [was served by a process server who is not sheriff of the county in which it was served nor a person eighteen years or older] [was served on a member of defendant’s family who is less than sixteen years of age] [was served on , who is neither an officer nor the registered agent of the defendant corporation] (or as the case may be). 6. To dismiss the complaint for failure to state a claim upon which relief can begranted. 7. To dismiss the complaint for failure to join , a [person] [corporation] necessary for just adjudication because [he] [it] is this defendant’s [co-tenant, lessee, royalty holder, assignee (or as the case may be)] whose rights are involved in this action. NOTICE OF MOTION TO:

Attorney for Plaintiff

Address Please take notice that the undersigned will bring the above motion on for hearing before this court at the County Courthouse in the City of , Mississippi, on the day of , 19 , at o’clock a. m./p. m. that day or as soon thereafter as counsel can be heard.

Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that I have this date served a copy of this Motion to Dismiss and Notice of same on J.K, Counsel of Record for the Plaintiff, A.B., by placing a copy of same in the United States mail, postage prepaid, addressed to his regular business mailing address. This the day of , 19 .

Attorney for Defendant

Address

18 FORM 23. ANSWER PRESENTING DEFENSES UNDER RULE 12 (b) First Defense [Improper Venue] The action is brought in the wrong county because the defendant is a domestic corporation domiciled in County, which is not the county in which this action is brought or in which the cause of action occurred or accrued. Second Defense [Admission and Denial] Defendant admits the allegations contained in paragraphs 1 and 4 of the complaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and every other allegation contained in the complaint. Third Defense [Statute of Limitations]

The right of action set forth in the complaint did not accrue within years next before the commencement of this action. Counter-claim Here set forth any claim as a counter-claim in the manner in which a claim is pleaded in a complaint. Cross-Claim against Defendant M. N. Here set forth the claim constituting a cross-claim against defendant M. N. in the manner in which a claim is pleaded in a complaint. FORM 24. MOTION TO BRING IN THIRD-PARTY DEFENDANT Defendant moves for leave, as third-party plaintiff, to cause to be served upon E. F. a summons and third-party complaint, copies of which are attached as Exhibit A. FORM 25. THIRD-PARTY COMPLAINT 1. Plaintiff, A. B., has filed against defendant, C. D., a complaint, a copy of whichis attached as Exhibit A. 2. If the defendant, C. D., is liable to the plaintiff on the occasion complained ofin the complaint, it is liable because [here state the grounds upon which C. D., is entitled to recover from E. F., all or part of what A. B. may recover from C. D. The statement should be framed as in an original complaint.] Wherefore, C. D. demands judgment against third-party defendant E. F. for all sums that may be adjudged against defendant C. D. in favor of plaintiff, A. B.

19 FORM 26. MOTION TO INTERVENE AS A DEFENDANT UNDER RULE 24 [Based upon the Complaint, Form 15] IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff v. Civil Action, File No. C.D., Defendant E.F., Applicant for Intervention MOTION TO INTERVENE AS A DEFENDANT

E. F. moves to intervene as a defendant in this action to assert the defenses set forth in his proposed answer, a copy of which is attached hereto, on the ground that he is the owner of the automobile alleged in the Complaint to have collided with the vehicle occupied by the plaintiff and as such as a defense to plaintiffs claim presenting both questions of law and of fact which are common to the main action.

Attorney for E. F. Applicant for Intervention

Address NOTICE OF MOTION [Contents the same as in Form 22] IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI A.B., Plaintiff v. Civil Action, File No. C.D., Defendant E.F., Intervener INTERVENER’S ANSWER First Defense Intervener denies the allegations stated in paragraphs 1 and 2 of the Complaint in so far as they assert negligence on the part of the defendant. Second Defense Intervener asserts that at the time of the collision stated in the Complaint the plaintiff was operating his vehicle under the influence of alcohol and in a wantonly negligent manner. Third Defense Intervener asserts that at the time of the collision stated in the Complaint defendant was operating intervener’s vehicle without intervener’s authority, permission, or license.

20 FORM 27. MOTION TO DROP DEFENDANT OR FOR SEVERANCE OF CLAIMS Defendant, , moves the court for an order dropping him as a party defendant herein or in the alternative for an order severing the claim asserted against him by plaintiff herein from the claim asserted against defendant, , on the grounds that: 1. The alleged claim asserted against defendant, , does not arise from the same transaction, occurrence, or series of transactions or occurrences, as the claim asserted against defendant, ; nor do the two alleged claims involve questions of law or fact common to both defendants. 2. The moving defendant will be put to undue expense and embarrassment if he isrequired to proceed with his defense without a severance of the issues. 3. The trial of action will be embarrassing and the jury confused by a joint trial ofthe claims asserted against the two defendants herein, all to the prejudice of the moving defendant. FORM 28. MOTION BY DEFENDANT FOR SEVERANCE OF CLAIMS OF SEVERAL PLAINTIFFS Defendant moves the court for an order severing the claims asserted by the respective plaintiffs herein against the defendant, on the grounds that: 1. The alleged claim or claims of each plaintiff differ in material and essentialelements and respects from the alleged claim or claims of each of the other plaintiffs. 2. The alleged claims of the plaintiffs do not arise out of the same transaction,occurrence, or series of transactions or occurrences, and do not involve questions of law or fact common to all the plaintiffs. 3. The joining in one action and one complaint of the alleged claims of theplaintiffs is prejudicial to the defendant and injures his substantial rights and will embarrass and delay the trial. FORM 29. MOTION BY PLAINTIFF TO ADD DEFENDANT Plaintiff moves the court for an order making a party defendant herein and directing the issuance and service of process on him, and for grounds therefor shows: 1. This is an action for [state briefly the nature of the claim for relief].

2. [State facts showing that the proposed additional defendant is an indispensable,necessary or proper party defendant]. 3. The said is a citizen and resident of , is subject to the jurisdiction of this court as to both service of process and venue and can be made a party defendant herein without depriving the court of jurisdiction. FORM 30. MOTION BY DEFENDANT TO BRING IN ADDITIONAL DEFENDANT Defendant moves the court for an order making a party defendant herein; directing that process be issued and served upon defendant ; and requiring plaintiff to serve and file an amended complaint, and for grounds therefor shows:

21 1. This is an action for [state briefly the nature of the claim for relief]. 2. [State facts showing that a person needed for just adjudication has not beenjoined as a defendant]. 3. The said is a citizen and a resident of , is subject to the jurisdiction of this court as to both service of process and venue, and can be made a party defendant herein without depriving the court of jurisdiction. FORM 31. MOTION BY DEFENDANT TO ADD ADDITIONAL PLAINTIFF Defendant moves the court for an order directing that be made a party plaintiff herein, or in the alternative, if refuses to join as a plaintiff, he be made a defendant as provided by Rule 19(a), and for grounds therefor shows: 1. This is an action for [state briefly the nature of the claim for relief]. 2. [State facts showing that a person needed for just adjudication has not beenjoined as a plaintiff]. 3. The said is a citizen and resident of ; he is subject to the jurisdiction of this court as to service of process and venue; and he can be made a party plaintiff (or, as the case may be, a party defendant) herein without depriving the court of jurisdiction. FORM 32. ANSWER TO COMPLAINT SET FORTH IN FORM 11 WITH COUNTER-CLAIM FOR INTERPLEADER

Defense Defendant admits the allegations stated in paragraph 1 of the complaint and denies the allegations stated in paragraph 2 to the extent set forth in the counter-claim herein. Counter-claim for Interpleader 1. Defendant received the sum of dollars as a deposit from E. F. 2. Plaintiff has demanded the payment of such deposit to him by virtue of anassignment of same which he claims to have received from E. F. 3. E. F. has notified the defendant that he claims such deposit, that the purportedassignment is not valid, and that he holds the defendant responsible for the deposit. Wherefore defendant demands: (1) That the court order E. F. to be made a party defendant to respond to thecomplaint and to this counter-claim. (2) That the court order the plaintiff or E. F. to interplead their respective claims. (3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum ofmoney. (4) That the court discharge defendant from all liability in the action except to theperson it shall adjudge entitled to the sum of money. (5) That the court award to the defendant its costs and attorney’s fees. FORM 33. PLAINTIFF’S MOTION FOR SUBSTITUTION DECEASED PARTY DEFENDANT Plaintiff shows to the court that , the above-named defendant, died intestate (or testate) on or about the day of , 19 ; that letters of

22 administration upon the estate of the said were issued on the day of , 19 , to as administrator by the Court of the State of Mississippi (or, that was duly appointed executor of the last will of by the Court of the State of Mississippi and qualified as such executor on the day of , 19 ): and this is an action for [state briefly nature of action] and the claim of plaintiff was not extinguished by the death of defendant.

Wherefore plaintiff moves the court for an order substituting , administrator (or, as the case may be, executor) of the estate of , deceased, as party defendant herein. FORM 34. PRE-TRIAL ORDER 1. Counsel. Appearing for the plaintiff: Appearing for the defendant: 2. Nature of the case. [Count 1 of] the complaint alleges a cause of action basedupon [negligence, breach of warranty, breach of oral contract, etc.]. 3. Positions of the parties. a. Plaintiff contends: [concise statement of factual and legal contentions]. b. Defendant contends: [concise statement of factual and legal contentions]. 4. Stipulations and admissions. 5. Discovery. Discovery proceeding6 have been completed except as follows: [specify additional discovery proceedings required]. 6. Additional Orders: [as required by the particular case]. Ordered that the above allowances and agreements are binding on all parties in the above- styled cause unless this order be hereafter modified by the Court for good cause and to prevent manifest injustice. Done this day of , 19 .

Judge FORM 35. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL Defendant [Plaintiff] moves the Court to set aside the verdict and judgment entered in the above-styled action on , 19 , and to enter judgment in favor of the Defendant [Plaintiff] in accordance with the motion for directed verdict, or, in the alternative, Defendant [Plaintiff] moves the court to set aside the verdict and grant Defendant [Plaintiff] a new trial on the following grounds, to-wit: 1. 2. [Herein state grounds] 3.

23 FORM 36. APPLICATION TO CLERK FOR ENTRY OF DEFAULT AND SUPPORTING AFFIDAVIT The clerk is requested to enter default against the defendant in the above entitled action for failure to plead, answer or otherwise defend as set out in the affidavit hereto annexed.

Attorney for Plaintiff State of Mississippi) County of ) , being duly sworn, deposed and says: 1. That he is attorney of record of the plaintiff, and has personal knowledge of thefacts set forth in this affidavit. 2. That the defendant was duly served with a copy of the summons, together witha copy of plaintiffs complaint, on the day of , 19 . 3. That more than 30 days have elapsed since the date on which the said defendantwas served with summons and a copy of the complaint. 4. That the defendant has failed to answer or otherwise defend as to plaintiffscomplaint, or serve a copy of any answer or other defense which he might have upon the undersigned attorney of record for the plaintiff. 5. That this affidavit is executed by affiant herein in accordance with Rule 55(a) of the Mississippi Rules of Civil Procedure, for the purpose of enabling the plaintiff to obtain an entry of default against the defendant, for his failure to answer or otherwise defend as to the plaintiffs complaint.

Attorney for Plaintiff Sworn to and subscribed before me this the day of , 19 .

Notary Public FORM 37. DOCKET OF ENTRY OF DEFAULT Default entered against defendant this day of , 19 . FORM 38. DEFAULT JUDGMENT ENTERED BY COURT This action came on for hearing on the motion of the plaintiff for a default judgment pursuant to Rule 55(b)(2) of the Mississippi Rules of Civil Procedure, and the defendant having been duly served with the summons and complaint and not being an infant or an unrepresented incompetent person and having failed to plead or otherwise defend, and his default having been duly entered and the defendant having taken no proceedings since such default was entered, It is Ordered and Adjudged that [here set forth relief granted to plaintiff]. This day of , 19 .

Judge

24 APPENDIX B. STATUTES AFFECTED STATUTES [Deleted in its entirety].

[deleted in its entirety.] [Effective June 6/24/, 1992.].

25 APPENDIX C. TIME TABLE FOR PROCEEDINGS UNDER THE MISSISSIPPI RULES OF CIVIL PROCEDURE [Deleted in its entirety].

[deleted in its entirety.] [Effective June 6/24/, 1992.].

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